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authorJonas Smedegaard <dr@jones.dk>2014-12-15 11:25:20 +0100
committerJonas Smedegaard <dr@jones.dk>2014-12-15 11:25:20 +0100
commit7a0293f44eac8c8736c3cf9ad0ac5f846f26c6b7 (patch)
tree8541cd1a1e1931770598568e648d20e9eec51dcd /eut.raw
parent309181b4c08286d27914a486c2931bbc436d1f64 (diff)
Sync with source as of 2014-12-15:11-24.
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@@ -17,7 +17,7 @@
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@@ -51,21 +51,21 @@ mw.loader.load(["mediawiki.page.startup","mediawiki.legacy.wikibits","mediawiki.
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-'''&lt;big>&lt;u>Request for comments and publication process&lt;/u>&lt;/big>'''&lt;br>
+'''&lt;big>&lt;u>Request for further comments!&lt;/u>&lt;/big>'''&lt;br>
&lt;/td>
&lt;/tr>
&lt;tr>
&lt;td>
&lt;ul>
&lt;b>
-&lt;li>'''''UPDATE 2:''''' The final editorial phase is now drawing to an end.&lt;br>&lt;br>&lt;/li>
-&lt;li>Comments sent to the Greens/EFA mailing list using [mailto:hub@icg.greens-efa.eu?subject=RULE%20115&amp;body=Dear%20friends,%0A%0AI%20am%20aware%20that%20this%20email%20will%20be%20publicly%20archived%20here:%0A%0A%20%20%20http://icg.greens-efa.org/pipermail/hub/%0A%0AI%20would%20like%20to%20give%20the%20following%20feedback:%0A%0A%0A%0A%0AThank%20you%20and%20best%20regards.%0A%0A%0A%0A%0A%0A this template] will be [http://icg.greens-efa.eu/pipermail/hub/ archived].&lt;br>&lt;br>&lt;/li>
-&lt;li>A link to the final print version will be made available on this page.&lt;/li>
+&lt;li>The first edition of the study is now finalised. Please find it here: http://www.greens-efa.eu/fileadmin/dam/Documents/Studies/Ensuring-Utmost-Transparency--Piana-Oberg-Korff.pdf &lt;br>&lt;br>&lt;/li>
+&lt;li>You are still welcome to send your comments to the Greens/EFA mailing list using [mailto:hub@icg.greens-efa.eu?subject=RULE%20115&amp;body=Dear%20friends,%0A%0AI%20am%20aware%20that%20this%20email%20will%20be%20publicly%20archived%20here:%0A%0A%20%20%20http://icg.greens-efa.org/pipermail/hub/%0A%0AI%20would%20like%20to%20give%20the%20following%20feedback:%0A%0A%0A%0A%0AThank%20you%20and%20best%20regards.%0A%0A%0A%0A%0A%0A this template]. Your contribution will be [http://icg.greens-efa.eu/pipermail/hub/ archived].&lt;br>&lt;br>&lt;/li>
+&lt;li>A link to the second edition will be made available on this page when ready.&lt;/li>
&lt;/b>
&lt;/ul>
&lt;/td>
&lt;td align="right">
-[http://greens-efa.eu http://erikjosefsson.eu/sites/default/files/115-work-in-progress-200px.jpg]
+[http://greens-efa.eu http://erikjosefsson.eu/sites/default/files/115-work-commissioned-by-200px.jpg]
&lt;/td>
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@@ -73,99 +73,19 @@ mw.loader.load(["mediawiki.page.startup","mediawiki.legacy.wikibits","mediawiki.
= About =
-'''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 [http://greens-efa.eu/ 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&lt;ref>From {{cite web|title=Greens/EFA commissions "Rule 103" study|url=http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html|accessdate=12 October 2014|ref=Greens/EFA Internet Core Group public mailing list}}&lt;/ref> 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>.
+'''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&lt;ref>From {{cite web|title=Greens/EFA commissions "Rule 103" study|url=http://icg.greens-efa.eu/pipermail/hub/2014-May/000130.html|accessdate=12 October 2014|ref=Greens/EFA Internet Core Group public mailing list}}&lt;/ref> 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 has been open for public review from [http://en.euwiki.org/w/index.php?title=Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament&amp;diff=17300&amp;oldid=16920 October 15 till November 15 2014]. Online support during the review period has been provided by [[Jonatan Walck]].
+The study has been open for public review on euwiki.org from October 15 till November 15 2014&lt;ref>See diff on euwiki: http://en.euwiki.org/w/index.php?title=Ensuring_utmost_transparency_--_Free_Software_and_Open_Standards_under_the_Rules_of_Procedure_of_the_European_Parliament&amp;diff=17300&amp;oldid=16920 &lt;/ref>. Online support during the review period has been 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 cover illustration has been created by [http://sirireiter.dk Siri Reiter] based on a [http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=3a50e246-d3c4-4ae8-9068-ce3249307d15 photograph] provided by the European Parliament's [http://audiovisual.europarl.europa.eu Audiovisual Services for Media] who also holds the copyright of the original.
+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 who also holds the copyright of the original&lt;ref>European Parliament's Audiovisual Services for Media website: http://audiovisual.europarl.europa.eu Audiovisual Services for Media and the photograph used for the illustration: http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=3a50e246-d3c4-4ae8-9068-ce3249307d15&lt;/ref>.
-The work and the cover illustration are licensed under [http://creativecommons.org/licenses/by-sa/4.0/ Creative Commons Attribution-ShareAlike 4.0 International License].
+The work and the cover illustration are licensed under Creative Commons Attribution-ShareAlike 4.0 International License&lt;ref>Creative Commons Attribution-ShareAlike 4.0 International License http://creativecommons.org/licenses/by-sa/4.0/&lt;/ref>.
The viewpoints in this study belong to the authors and the authors alone.
= Table of Contents =
-
__TOC__
-&lt;!-- ***WHY has this been created?*** The table of contents is more accurate and the CSS can mask certain levels
-&lt;ul>
-&lt;li>[[#Foreword|Foreword]]&lt;/li>
-&lt;li>[[#Scope_and_method_of_analysis|Scope and method of analysis]]&lt;/li>
-&lt;li>[[#The_Constitutional_Principle_of_Openness_under_European_Law|The Constitutional Principle of Openness under European Law]]&lt;/li>
-&lt;ul>
-&lt;li>[[#Parliament_has_Imposed_upon_Itself_a_Commitment_to_Conduct_its_Activities_with_the_Utmost_Transparency|Parliament has Imposed upon Itself a Commitment to Conduct its Activities with the Utmost Transparency]]&lt;/li>
-&lt;li>[[#The_Principle_of_Openness_and_the_Right_of_Access_to_Information:_A_Basis_for_Imposing_Free_Software_and_Open_Standards_.3F|The Principle of Openness and the Right of Access to Information: A Basis for Imposing Free Software and Open Standards&amp;#160;?]]&lt;/li>
-&lt;ul>
-&lt;li>[[#The_Treaties|The Treaties]]&lt;/li>
-&lt;li>[[#Charter_of_Fundamental_Rights_of_the_European_Union|Charter of Fundamental Rights of the European Union]]&lt;/li>
-&lt;li>[[#Article_10_in_the_European_Convention_of_Human_Rights|Article 10 in the European Convention of Human Rights]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Legislative_Openness|Legislative Openness]]&lt;/li>
-&lt;ul>
-&lt;li>[[#The_Need_for_Lawmakers_to_Deliberate_in_Private|The Need for Lawmakers to Deliberate in Private]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Conduct_of_Business_as_.22Openly_as_Possible.22_or_with_the_.22Utmost_Transparency.22|Conduct of Business as "Openly as Possible" or with the "Utmost Transparency"]]&lt;/li>
-&lt;li>[[#Neighbouring_concepts|Neighbouring concepts]]&lt;/li>
-&lt;ul>
-&lt;li>[[#Reuse_of_Public_Sector_Information|Reuse of Public Sector Information]]&lt;/li>
-&lt;li>[[#The_G8_Open_Data_Charter|The G8 Open Data Charter]]&lt;/li>
-&lt;li>[[#Reuse_of_EU_Institution_documents|Reuse of EU Institution documents]]&lt;/li>
-&lt;li>[[#Reuse_of_Public_Sector_Information_does_not_necessarily_ensure_an_Open_Government|Reuse of Public Sector Information does not necessarily ensure an Open Government]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Does_Openness_mean_.22accessible.22.3F|Does Openness mean "accessible"?]]&lt;/li>
-&lt;li>[[#Does_.22accessible.22_mean_.28also.29_Free_and_Open.3F|Does "accessible" mean (also) Free and Open?]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Free_and_open_in_technology|Free and open in technology]]&lt;/li>
-&lt;ul>
-&lt;li>[[#Free_and_Open_Standards|Free and Open Standards]]&lt;/li>
-&lt;ul>
-&lt;li>[[#The_European_Interoperability_Framework_V.1|The European Interoperability Framework V.1]]&lt;/li>
-&lt;li>[[#The_European_Interoperability_Framework_V.2|The European Interoperability Framework V.2]]&lt;/li>
-&lt;li>[[#The_UK_definition|The UK definition]]&lt;/li>
-&lt;li>[[#The_Indian_definition_.28an_example_of_strictest_approach.29|The Indian definition (an example of strictest approach)]]&lt;/li>
-&lt;li>[[#Many_more_definitions|Many more definitions]]&lt;/li>
-&lt;li>[[#The_RFCs|The RFCs]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Free_and_Open_Source_Software_.28FOSS.29|Free and Open Source Software (FOSS)]]&lt;/li>
-&lt;ul>
-&lt;li>[[#Definitions|Definitions]]&lt;/li>
-&lt;li>[[#Is_that_about_it.3F|Is that about it?]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Lock_in|Lock in]]&lt;/li>
-&lt;li>[[#Free_and_Open_data_and_content|Free and Open data and content]]&lt;/li>
-&lt;ul>
-&lt;li>[[#Copyright|Copyright]]&lt;/li>
-&lt;li>[[#.28Open.29_Data|(Open) Data]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Practical_applications|Practical applications]]&lt;/li>
-&lt;ul>
-&lt;li>[[#Recording_and_broadcasting_of_public_works|Recording and broadcasting of public works]]&lt;/li>
-&lt;li>[[#Email_system|Email system]]&lt;/li>
-&lt;ul>
-&lt;li>[[#Basic_introduction_to_the_standard_infrastructure|Basic introduction to the standard infrastructure]]&lt;/li>
-&lt;li>[[#A_standard_secure_layer_from_client_to_server|A standard secure layer from client to server]]&lt;/li>
-&lt;li>[[#Mailing_lists|Mailing lists]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Publishing_and_archiving_documents|Publishing and archiving documents]]&lt;/li>
-&lt;li>[[#Surveillance_and_privacy|Surveillance and privacy]]&lt;/li>
-&lt;/ul>
-&lt;/li>
-&lt;li>[[#Conclusions|Conclusions]]&lt;/li>
-&lt;li>[[#Notes|Notes]]&lt;/li>
-&lt;/ul>
-&lt;br>&lt;br>&lt;br>&lt;br>&lt;br>&lt;br>&lt;br>&lt;br>
--->
-
= Foreword =
&lt;div id="foreword" style="background-color: #ededed;">
@@ -196,7 +116,7 @@ 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 and by Rule 116, 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&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 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>, 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.
@@ -204,13 +124,13 @@ Therefore, the right to access to documents as such is only treated insofar as i
== Parliament has Imposed upon Itself a Commitment to Conduct its Activities with the Utmost Transparency ==
-Rule 115 of the Rules of Procedure of the European Parliament &lt;ref> 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> provides that
+Rule 115 of the Rules of Procedure of the European Parliament provides that:
-&lt;blockquote>"1. 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;/blockquote>
+&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 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>
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;/blockquote>
+&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>
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".
@@ -244,18 +164,18 @@ 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" &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" &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>
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.
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''."&lt;/blockquote>
+&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''.&lt;/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>
+&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>
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>
@@ -267,14 +187,15 @@ The development of the principle of openness in EU law has been accompanied by a
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, 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 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)&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 &lt;ref>Document CCPR/C/GC/34 of 12 September 2011, §§ 18, 3, 15)&lt;/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:
-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 provides as follows:
+&lt;blockquote>Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.&lt;/blockquote>
-&lt;blockquote>3. Freedom of expression is a necessary condition for the realization of the principles of transparency and accountability that are, in turn, essential for the promotion and protection of human rights.&lt;/blockquote>
+Moreover, to give effect to the right of access to information, States Parties should proactively put in the public domain government information of public interest. States parties should make every effort to ensure easy, prompt, effective, and practical access to such information. In regard to freedom of expression, the Committee has linked it with the developments in information and communication technologies (paragraph 15):
-Moreover, to give effect to the right of access to information, States Parties should proactively put in the public domain government information of public interest. States parties should make every effort to ensure easy, prompt, effective, and practical access to such information. In regard to freedom of expression, the Committee has linked it with the developments in information and communication technologies:
-&lt;blockquote>15. 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. &lt;/blockquote>
+&lt;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.&lt;/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). &lt;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&lt;/ref>.
@@ -286,21 +207,21 @@ In the realm of secondary legislation, Recital 6 in the Preamble to Regulation N
On a comparative note, and despite the differences that may exist between national legislation and EU "legislation", or between Member State legislatures and the EU "legislature", the "legislative procedure" by which the Council and the European Parliament are bound, is conceptually very close to the national "legislative procedure", speaking from the point of view of its underlying purpose and thus the principles on which it must be based. In the end, they have in common the need to satisfy the imperative requirements of democratic legitimacy.
-As the Advocate General correctly pointed out in Case C‑280/11 P Council v Access Info Europe &lt;ref>Opinion of Advocate General Cruz Villalón in Case C‑280/11 P Council v Access Info Europe, EU:C:2013:325&lt;/ref>:
+As the Advocate General correctly pointed out in Case C‑280/11 P Council v Access Info Europe:
-&lt;blockquote>"’Legislating’ is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, ‘transparent’. Otherwise, it would not be possible to ascribe to ‘law’ the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate.
+&lt;blockquote>’Legislating’ is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, ‘transparent’. Otherwise, it would not be possible to ascribe to ‘law’ the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate.
-In the context of this public procedure, transparency therefore plays a key role that is somewhat different from its role in administrative procedures. While, in administrative procedures, transparency serves the very specific purpose of ensuring that the authorities are subject to the rule of law, in the legislative procedure it serves the purpose of legitimising the law itself and with it the legal order as a whole."&lt;/blockquote>
+In the context of this public procedure, transparency therefore plays a key role that is somewhat different from its role in administrative procedures. While, in administrative procedures, transparency serves the very specific purpose of ensuring that the authorities are subject to the rule of law, in the legislative procedure it serves the purpose of legitimising the law itself and with it the legal order as a whole.&lt;ref>Opinion of Advocate General Cruz Villalón in Case C‑280/11 P Council v Access Info Europe, EU:C:2013:325&lt;/ref>&lt;/blockquote>
In its judgment in Sweden and Turco v Council,&lt;ref>(EU:C:2008:374)&lt;/ref> the Court held that it is for the Council to balance the particular interest to be protected by non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible in the light of the advantages stemming from increased openness. It states that when the Council is acting in its legislative capacity, it is particularly relevant that openness be considered, given that it enables citizens to participate more closely in the decision-making process, guarantees that the administration enjoys greater legitimacy, and is more effective and more accountable to the citizen in a democratic system.
The following Recitals in the Preamble to Regulation No 1049/2001 are relevant in this respect:
-&lt;blockquote>"‘(1) The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
+&lt;blockquote>(1) The second subparagraph of Article 1 of the Treaty on European Union enshrines the concept of openness, stating that the Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
-(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.
+(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 of the EU Treaty and in the Charter of Fundamental Rights of the European Union.
-(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent."&lt;/blockquote>
+(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process. Such documents should be made directly accessible to the greatest possible extent.&lt;/blockquote>
The Court has confirmed that the considerations of legislative openness are clearly of particular relevance where the Council is acting in its legislative capacity: "Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights".&lt;ref>Sweden and Turco v Council, paragraph 46 and Council of the European Union v Access Info Europe, paragraph 00&lt;/ref>
@@ -316,39 +237,39 @@ The implications of the switch to an informal mode of legislating for representa
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. The Convention is based on three ‘pillars’ – access to information, public participation, and access to justice. Its preamble includes the following recitals:
-&lt;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,
+&lt;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,
Aiming thereby to further the accountability of and transparency in decision-making and to strengthen public support for decisions on the environment,
-Recognising the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings’.&lt;/blockquote>
+Recognising the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings,&lt;/blockquote>
The second sentence of Article 2(2) allows Member States to exclude from the scope of the Directive bodies otherwise falling within the definition of ‘public authority’, ‘when acting in a judicial or legislative capacity’.
The Convention was approved on behalf of the European Community by Council Decision 2005/370, (3) the annex to which contains a declaration by the European Community (‘the Declaration’) which reads, in so far as relevant, as follows:
-&lt;blockquote>‘In relation to Article 9 of the Aarhus Convention the European Community invites Parties to the Convention to take note of Article 2(2) and Article 6 of [the Directive]. These provisions give Member States of the European Community the possibility, in exceptional cases and under strictly specified conditions, to exclude certain institutions and bodies from the rules on review procedures in relation to decisions on requests for information.
+&lt;blockquote>In relation to Article 9 of the Aarhus Convention the European Community invites Parties to the Convention to take note of Article 2(2) and Article 6 of [the Directive]. These provisions give Member States of the European Community the possibility, in exceptional cases and under strictly specified conditions, to exclude certain institutions and bodies from the rules on review procedures in relation to decisions on requests for information.
-Therefore the ratification by the European Community of the Aarhus Convention encompasses any reservation by a Member State of the European Community to the extent that such a reservation is compatible with Article 2(2) and Article 6 of [the Directive].’&lt;/blockquote>
+Therefore the ratification by the European Community of the Aarhus Convention encompasses any reservation by a Member State of the European Community to the extent that such a reservation is compatible with Article 2(2) and Article 6 of [the Directive].&lt;/blockquote>
In ratifying the Convention on 20 May 2005, Sweden lodged a reservation which, in so far as is relevant, reads as follows:
-&lt;blockquote>‘Sweden lodges a reservation in relation to Article 9.1 with regard to access to a review procedure before a court of law of decisions taken by the Parliament, the Government and Ministers on issues involving the release of official documents.’&lt;/blockquote>
+&lt;blockquote>Sweden lodges a reservation in relation to Article 9.1 with regard to access to a review procedure before a court of law of decisions taken by the Parliament, the Government and Ministers on issues involving the release of official documents.&lt;/blockquote>
In accordance with Directive 2003/4,&lt;ref>Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) (‘the Directive’).&lt;/ref> public authorities must in principle be required to make environmental information held by or for them available to any applicant at his request. However, the Directive permits