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authorJonas Smedegaard <dr@jones.dk>2015-01-07 16:40:28 +0100
committerJonas Smedegaard <dr@jones.dk>2015-01-07 16:40:28 +0100
commit6983e4931534808027175d6aa649c5b503566443 (patch)
tree448ba7f585ee41d86fae1445c2fc23730e41d286 /eut.raw
parentc33904111ac3b886cd10ff1c3f1dbdcd7c277941 (diff)
Re-sync with source rev. 17624.
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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&lt;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}}&lt;/ref> and Ulf Öberg&lt;ref name="Ulf Öberg">'''Ulf Öberg''' is Founder and Managing Partner of the law firm Öberg &amp; 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}}&lt;/ref> under the supervision of Professor Douwe Korff&lt;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 &amp; Human Rights of the European University Viadrina in Berlin.&lt;/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&lt;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].&lt;/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>.
-The cover illustration has been created by Siri Reiter&lt;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.&lt;/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&lt;ref>'''Jonas Smedegaard''' is an official Debian developer since 2001.&lt;/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>.
= Copyright and further information=
@@ -72,7 +23,7 @@ The cover illustration is licensed under [https://creativecommons.org/licenses/b
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&lt;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&lt;/ref>.
+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
@@ -93,7 +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. &lt;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&lt;/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.
@@ -107,7 +58,7 @@ The third trajectory is bottom-up, and analyses single areas of IT, which have b
Finally, as the study analyses the inference between the principle of openness and Free Software and Open Standards, a short description of what they are cannot be avoided.
-Although similar in concept, this study only addresses the adjacent area of "Right to Access" or "Freedom of Information" in so far it is relevant for the understanding of the Principle of Openness in EU law, and its possible requirements for the discussion on Free Software and Open Standards. Access to document procedures are laid down the Regulation (EC) No 1049/2001&lt;ref>Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001R1049&amp;from=EN&lt;/ref> and by Rule 116&lt;ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 116 : Public access to documents, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-116+DOC+XML+V0//EN&amp;language=EN&amp;navigationBar=YES&lt;/ref>, and are not as such material to this study. Undoubtedly the right of access to documents is an useful complement to openness as it ensures that the openness is achieved in full, by providing means to take an active role in disclosing facts and documents that are withheld from public view and should not. However, the access to documents mechanism proceeds by formal questions and answers, whereas the openness is evidently a more dynamic and holistic process that does not depend on legal actions and requests by individuals.
+Although similar in concept, this study only addresses the adjacent area of "Right to Access" or "Freedom of Information" in so far it is relevant for the understanding of the Principle of Openness in EU law, and its possible requirements for the discussion on Free Software and Open Standards. Access to document procedures are laid down the Regulation (EC) No 1049/2001<ref>Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32001R1049&from=EN</ref> and by Rule 116<ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 116 : Public access to documents, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-116+DOC+XML+V0//EN&language=EN&navigationBar=YES</ref>, and are not as such material to this study. Undoubtedly the right of access to documents is an useful complement to openness as it ensures that the openness is achieved in full, by providing means to take an active role in disclosing facts and documents that are withheld from public view and should not. However, the access to documents mechanism proceeds by formal questions and answers, whereas the openness is evidently a more dynamic and holistic process that does not depend on legal actions and requests by individuals.
Therefore, the right to access to documents as such is only treated insofar as it provides useful information for the application of the principle of openness in practice on the debate on Free Software and Open Standards.
@@ -117,15 +68,15 @@ Therefore, the right to access to documents as such is only treated insofar as i
Rule 115 of the Rules of Procedure of the European Parliament provides that:
-&lt;blockquote>Parliament shall ensure that its activities are conducted with the utmost transparency, in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union.&lt;ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 115 : Transparency of Parliament's activities, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-115+DOC+XML+V0//EN&amp;language=EN&amp;navigationBar=YES&lt;/ref>&lt;/blockquote>
+<blockquote>Parliament shall ensure that its activities are conducted with the utmost transparency, in accordance with the second paragraph of Article 1 of the Treaty on European Union, Article 15 of the Treaty on the Functioning of the European Union and Article 42 of the Charter of Fundamental Rights of the European Union.<ref>Rules of Procedure of the European Parliament, TITLE IV : TRANSPARENCY OF BUSINESS, Rule 115 : Transparency of Parliament's activities, available at http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+RULES-EP+20140701+RULE-115+DOC+XML+V0//EN&language=EN&navigationBar=YES</ref></blockquote>
The European Parliament has been a champion in promoting not only openness of the legislative process and the access to legislative documents, but also that the EU Courts should accept that openness constitutes a general principle of EU law, and that the right to information is as such a fundamental human right. In Netherlands v Council, the European Parliament argued as follows:
-&lt;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.&lt;ref>Case C-58/94 Netherlands v Council [1996] ECLI:EU:C:1996:171 at para 18.&lt;/ref>&lt;/blockquote>
+<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".
-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.&lt;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&lt;/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.
@@ -133,11 +84,11 @@ Therefore, internal rules cannot be regarded as measures conferring on European
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.&lt;ref>Judgment European Parliament v. Council EU:C:2014:2025, paragraph 80-81&lt;/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 ? ==
-The first real step towards allowing the public a right of access to documents held by the Community institutions dates back to 7 February 1992 when the Member States signed the Final Act to the Maastricht Treaty.&lt;ref>Broberg, M., Access to documents: a general principle of Community law?, European Law Review (2002), pp. 196, 197&lt;/ref>. In Declaration No. 17 to that Act, the Member States pointed to the close connection between the transparency of the decision-making process and the democratic nature of the Community institutions. Nowadays, the principle of openness in European Union law has solid roots, as the very text of the Rule 115 makes clear, in the fundamental Treaties of the European Union.
+The first real step towards allowing the public a right of access to documents held by the Community institutions dates back to 7 February 1992 when the Member States signed the Final Act to the Maastricht Treaty.<ref>Broberg, M., Access to documents: a general principle of Community law?, European Law Review (2002), pp. 196, 197</ref>. In Declaration No. 17 to that Act, the Member States pointed to the close connection between the transparency of the decision-making process and the democratic nature of the Community institutions. Nowadays, the principle of openness in European Union law has solid roots, as the very text of the Rule 115 makes clear, in the fundamental Treaties of the European Union.
=== The Treaties ===
@@ -145,123 +96,123 @@ 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"&lt;ref>Within the meaning of the judgment in Case 26/62 Van Gend en Loos [1963] ECR 1&lt;/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. &lt;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&lt;/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" &lt;ref>Case T-14/98 Hautala v Council [1999] ECR II-2489, paragraph 87&lt;/ref>, and to the "principle of transparency" &lt;ref> Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 52&lt;/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:
-&lt;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.&lt;ref>Case T 264/04 WWF European Policy Programme v Council [2007] ECR II-911 at para 76.&lt;/ref>&lt;/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.&lt;ref>Case C-353/99 P Council v Hautala [2001] ECR I-9565, paragraph 31&lt;/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" &lt;ref>Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14&lt;/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.&lt;ref>Pitsiorlas v Council and ECB, paragraph 221-223&lt;/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.&lt;ref>Sweden v Commission, C-64/05 P, EU:C:2007:802&lt;/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.&lt;ref >Commission v Agrofert Holding EU:C:2012:394, paragraph 88 &lt;/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:
-&lt;blockquote>In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies ''shall conduct their work as openly as possible''. [emphasis added]&lt;/blockquote>
+<blockquote>In order to promote good governance and ensure the participation of civil society, the Union institutions, bodies, offices and agencies ''shall conduct their work as openly as possible''. [emphasis added]</blockquote>
=== Charter of Fundamental Rights of the European Union ===
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:
-&lt;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.&lt;/blockquote>
+<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&lt;ref>OJ 2005 L 262, p. 1&lt;/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.&lt;ref>Opinion Afton Chemical EU:C:2010:258&lt;/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 &lt;ref>See Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998-I).&lt;/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.&lt;ref>Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 44, 14 April 2009.&lt;/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,&lt;ref>Application no. 48135/06, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120955&lt;/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.&lt;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/&lt;/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 &lt;ref>Document CCPR/C/GC/34 of 12 September 2011, §§ 18, 3, 15)&lt;/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>.
The Human Rights Committee has in turn stressed both the proactive and the reactive dimensions of the freedom of expression and freedom of information. Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source, and the date of production. As the Committee has observed in its General Comment No. 16, regarding Article 17 of the Covenant, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Paragraph 3 of the General Comment No. 34 provides as follows:
-&lt;blockquote>Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that