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authorJonas Smedegaard <dr@jones.dk>2015-01-08 01:33:43 +0100
committerJonas Smedegaard <dr@jones.dk>2015-01-08 01:33:43 +0100
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= Preface =
-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 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>.
@@ -32,7 +32,7 @@ __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.
@@ -44,7 +44,7 @@ Crucially, the authors have managed to draw on all these sources to indicate cle
= Scope and method of analysis=
-This study arises from a proposal by the Greens/EFA, backed by two Plenary decisions, that the European Parliament investigates its own transparency obligations under its Rules of Procedure with regard to Free Software and Open Standards. <ref>Quoting from the public mail archive of the Greens/EFA Internet Core Group: "The Greens/EFA group in the European Parliament has commissioned a study into the implications of Rule 103 of the European Parliament's Rules of Procedure for the Parliament's decisions, policies, procedures, etc., with regard to Free Software and Open Standards [...] The study will assess whether, and if so how and to what extent, Rule 103 can inform the EP's ICT decisions, policies, procedures, etc. (including procurement decisions) with regard to Free Software and Open Standards.", available at http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html</ref>
+This study arises from a proposal by the Greens/EFA, backed by two Plenary decisions, that the European Parliament investigates its own transparency obligations under its Rules of Procedure with regard to Free Software and Open Standards.<ref>Quoting from the public mail archive of the Greens/EFA Internet Core Group: "The Greens/EFA group in the European Parliament has commissioned a study into the implications of Rule 103 of the European Parliament's Rules of Procedure for the Parliament's decisions, policies, procedures, etc., with regard to Free Software and Open Standards [...] The study will assess whether, and if so how and to what extent, Rule 103 can inform the EP's ICT decisions, policies, procedures, etc. (including procurement decisions) with regard to Free Software and Open Standards.", available at http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html</ref>
The scope is therefore to verify whether, in general or in single areas, the principle of openness and the right of access to information mandates, and if so to what extent, the use of Free Software and Open Standards, or what kind of preference towards it, if any.
@@ -96,9 +96,9 @@ Article 1(2) and Article 10(3) of the Treaty establishing the European Union (TE
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>
@@ -106,9 +106,9 @@ To date, no clear guidance on this issue has been provided by the Court. In Coun
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>
+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:
@@ -140,7 +140,7 @@ 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 ==
@@ -170,15 +170,15 @@ The Court has confirmed that the considerations of legislative openness are clea
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,
@@ -203,9 +203,9 @@ In accordance with Directive 2003/4/EC public authorities must in principle be r
In her opinion in Flachglas Torgau (Case C-204/09), Advocate General Sharpstone summarised the dilemma as follows:
<blockquote>
-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.
-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>
+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" ==
@@ -235,12 +235,12 @@ A similar construction has been adopted by the Court as regards access to docume
<blockquote>
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).
-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).
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>
+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>
Against this background, any derogations from the Parliament's Rule 115 that "its activities are conducted with the utmost transparency" must be interpreted strictly, and in the light of the Court's case law on the Principle of Openness and the right of access to documents.
@@ -255,15 +255,14 @@ It should be noted that one of the open issues during the negotiations in the Co
== Neighbouring concepts ==
=== Re-use of Public Sector Information ===
-The Directive 2003/98/EC on the re-use of public sector information <ref>Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-utilisation of public sector information (OJ 2003 L 345, p. 90)</ref> as amended by Directive 2013/
-37/EU <ref>Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information (OJ L 175, 27.6.2013 p. 1-8)</ref>, also known as the "PSI Directive" <ref>In the remainder of this section, by using "PSI Directive" we make reference to the amended directive.</ref>, establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States. Article 2(4) of the PSI Directive defines re-use as "the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use".
+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.
Recital 9 clarifies that the definition of "document" is not intended to cover computer programmes. To facilitate re-use, public sector bodies should make their own documents available in a format which, as far as possible and appropriate, is not dependent on the use of specific software. Where possible and appropriate, public sector bodies should take into account the possibilities for the re-use of documents by and for people with disabilities.
In recital 16, the PSI Directive establishes a link between re-use of public sector information and the "right to knowledge" in the following terms:
-<blockquote>Making public all generally available documents held by the public sector - concerning not only the political process but also the legal and administrative process - is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy. This objective is applicable to institutions at every level, be it local, national or international.</blockquote>
+<blockquote>Making public all generally available documents held by the public sector -- concerning not only the political process but also the legal and administrative process -- is a fundamental instrument for extending the right to knowledge, which is a basic principle of democracy. This objective is applicable to institutions at every level, be it local, national or international.</blockquote>
The PSI Directive does not contain an obligation to allow re-use of documents, and the decision whether or not to authorise re-use remains with the Member States or the public sector body concerned. It applies to documents that are made accessible for re-use when public sector bodies license, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re-use includes further use of documents within the organisation itself for activities falling outside the scope of its public tasks. Activities falling outside the public task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market.
@@ -316,7 +315,7 @@ The EU has furthermore committed to promoting the application of the principles
=== Re-use of EU Institution documents ===
-As a rule, the European Commission has allowed re-use of its documents for commercial and non- commercial purposes at no charge since 2006, adopting a first decision of 7 April 2006 on re-use of Commission documents<ref> http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:107:0038:0041:EN:PDF </ref>
+As a rule, the European Commission has allowed re-use of its documents for commercial and non- commercial purposes at no charge since 2006, adopting a first decision of 7 April 2006 on re-use of Commission documents<ref>http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:107:0038:0041:EN:PDF</ref>
According to the seventh recital of this decision, "An open re-use policy at the Commission will support new economic activity, lead to a wider use and spread of Community information, enhance the image of openness and transparency of the Institutions, and avoid unnecessary administrative burden for users and Commission services". Again, the underlying rationale of the decision was to "support new economic activity", and the ambition in fostering Open Government was reduced "enhance the image of openness and transparency" of the Institutions.
@@ -332,9 +331,9 @@ Nevertheless, in creating a private market for Public sector information can hav
On 18 March 2010, the Swedish Government presented its Bill (2009/10:175) on Public Administration for Democracy, Participation and Growth. One proposal contained in the Bill was for a law on re-use of documents emanating from Swedish public administration. On 3 June 2010, the Act (2010:566) on the re-use of public administration documents entered into force. The Swedish Agency for Public Management has therefore been assigned to survey the extent to which Swedish central and local government agencies (public sector bodies) have granted exclusive rights or arrangements of the kind referred to in Article 11 of the PSI Directive.
-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>
+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"? ==
@@ -342,13 +341,13 @@ We submit that transparency should be measured having regard to not only the ave
For web content a standard has been developed by W3C, which is the Web Content Accessibility Guidelines (WCAG)<ref>{{cite web|title=Web Content Accessibility Guidelines (WCAG)|url=http://www.w3.org/WAI/intro/wcag|accessdate=16 October 2014}}</ref>.
-European Commission (EC) Mandate M 376 required the three main European standardisation bodies CEN, CENELEC and ETSI to harmonise and facilitate the public procurement of accessible information and communication technologies (ICT) products and services within Europe. <ref>{{cite web|title=European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain (European Commission Standardization Mandate M 376, Phase 2)|url=http://www.mandate376.eu/|accessdate=16 October 2014}}</ref>
+European Commission (EC) Mandate M 376 required the three main European standardisation bodies CEN, CENELEC and ETSI to harmonise and facilitate the public procurement of accessible information and communication technologies (ICT) products and services within Europe.<ref>{{cite web|title=European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain (European Commission Standardization Mandate M 376, Phase 2)|url=http://www.mandate376.eu/|accessdate=16 October 2014}}</ref>
Both of the mentioned standardisation rules have been mandated by some Member States<ref>Some information on the adoption of accessibility standards, a recent book is {{cite book|last1=Buie|first1=Elizabeth|last2=Murray|first2=Diane|title=Usability in Government Systems: User Experience Design for Citizens and Public Servants|date=2012|publisher=Elsevier|isbn=978-0-12-391063-9|url=http://books.google.it/books?id=U3P4tdoETiwC&dq|accessdate=16 October 2014}}</ref>
-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>
+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? ==
@@ -356,7 +355,7 @@ 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.
@@ -367,21 +366,21 @@ All signs point in the direction that standards involved in a public institution
[...]
-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 c