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authorJonas Smedegaard <dr@jones.dk>2015-01-04 12:34:20 +0100
committerJonas Smedegaard <dr@jones.dk>2015-01-04 12:34:20 +0100
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treed440d91519d55ffe4c38bb0af40b303702540cc6 /eut.raw
parentdf5fb8ae7109269a9e1fce596fa997ba8300ed8a (diff)
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&lt;/table>
&lt;/td>&lt;/tr>&lt;/table>
+= Preface =
-= About =
+The study "''Ensuring utmost transparency - Free Software and Open Standards under the Rules of Procedure of the European Parliament''" has been produced at the request of the Greens/EFA Group in the European Parliament by Carlo Piana&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&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 viewpoints in this study belong to the authors and the authors alone.
+The study has been open for public review on euwiki.org from 15 October till 15 November 2014. Online support during the review period was provided by Jonatan Walck&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 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 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&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 which also holds the copyright of the original&lt;ref>The photograph used for the illustration is hosted by the European Parliament's Audiovisual Services for Media, available at http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=3a50e246-d3c4-4ae8-9068-ce3249307d15&lt;/ref>.
-Transformation, layout and visual design for the 2nd edition of this study has been created by Jonas Smedegaard&lt;ref>'''Jonas Smedegaard''' is an official Debian developer since 2001. The source code for the transformation is available at http://source.epfsug.biks.dk/?p=eut.git&lt;/ref>.
+= Copyright and further information=
-The work and the cover illustration are independently licensed under the Creative Commons Attribution-ShareAlike 4.0 International License. Transformation, layout and visual design is licensed under [LICENCE].
+The work of the authors is licensed under the [https://creativecommons.org/licenses/by-sa/4.0/ Creative Commons Attribution-ShareAlike 4.0 International License].
+
+The cover illustration is licensed under [https://creativecommons.org/licenses/by-sa/4.0/ Creative Commons Attribution-ShareAlike 4.0 International License]. The [http://audiovisual.europarl.europa.eu/Assetdetail.aspx?id=3a50e246-d3c4-4ae8-9068-ce3249307d15 original photo] used for the illustration is hosted by the European Parliament's Audiovisual Services for Media which also holds the copyright.
+
+Transformation, layout and visual design are licensed under [LICENCE]. The [http://source.epfsug.biks.dk/?p=eut.git source code] for the transformation is available on-line.
+
+The 1st edition of the study was published on the Greens/EFA website on 11 December 2014&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>.
+
+More information about the study can be requested from Erik Josefsson, Greens/EFA Group in the European Parliament, Rue Wiertz 60, B-1047 Brussels, Belgium. E-mail: erik.josefsson@europarl.europa.eu
= Table of Contents =
__TOC__
= Foreword =
-This report is timely, and deals with an important issue in an era of widespread disillusionment with and distrust of politics and political institutions (or at least politicians). "Utmost transparency" has the potential to strengthen accountability and increase popular participation in the democratic processes. The report links this principle with the technical standards and practical steps that can be taken to ensure its full implementation – or that can effectively limit access. As the authors of this study point out, there is a difference between the somewhat legalistic right of access to information ("freedom of information") on an ad hoc, on-request basis, and general openness and transparency. The former right allows entrance to an in-principle closed building, or to closed rooms within closed buildings, on request, subject to limitations; the latter removes entire walls and allows daylight to permeate to all corners. Parliament’s duty to ensure "utmost transparency" clearly demands the latter rather than just the former.
+This report is timely, and deals with an important issue in an era of widespread disillusionment with and distrust of politics and political institutions (or at least politicians). "Utmost transparency" has the potential to strengthen accountability and increase popular participation in the democratic processes. The report links this principle with the technical standards and practical steps that can be taken to ensure its full implementation - or that can effectively limit access. As the authors of this study point out, there is a difference between the somewhat legalistic right of access to information ("freedom of information") on an ad hoc, on-request basis, and general openness and transparency. The former right allows entrance to an in-principle closed building, or to closed rooms within closed buildings, on request, subject to limitations; the latter removes entire walls and allows daylight to permeate to all corners. Parliament's duty to ensure "utmost transparency" clearly demands the latter rather than just the former.
In order to elucidate the relevant requirements, the authors provide excellent overviews of a large number of widely diverging and complex issues relevant to the topic: human rights law, EU law ranging from the Charter of Fundamental Rights to EC directives on public sector information and Commission decisions on data re-use, copyright, patents and protection of databases, principles of good governance, transparency standards relating to the environment (Aarhus), the G8 Open Data Charter and others on the mainly legal and governance standards side; the European Interoperability Framework (versions 1 and 2), open standards (as variously formally defined) and "semi-formal" RFCs, FOSS and email system requirements on the more practical, technical side. They have looked at relevant rules and practices in a range of countries including India, Sweden and the UK.
@@ -115,17 +123,17 @@ The European Parliament has been a champion in promoting not only openness of th
&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".
+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.&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.
-According to the case law of the Court, the purpose of the Community institutions’ internal Rules of Procedure is to organise the internal functioning of its services in the interests of good administration. The essential purpose of such rules, particularly those with regard to the organisation of deliberations and the adoption of decisions, is to ensure the smooth conduct of the decision-making procedure. It follows that natural or legal persons may normally not rely on an alleged breach of such rules, as they are not intended to ensure protection for individuals.
+According to the case law of the Court, the purpose of the Community institutions' internal Rules of Procedure is to organise the internal functioning of its services in the interests of good administration. The essential purpose of such rules, particularly those with regard to the organisation of deliberations and the adoption of decisions, is to ensure the smooth conduct of the decision-making procedure. It follows that natural or legal persons may normally not rely on an alleged breach of such rules, as they are not intended to ensure protection for individuals.
-Therefore, internal rules cannot be regarded as measures conferring on European citizens a substantive right of access to documents, to information, or to data held by the EU institutions. They are not intended to vest in European citizens a formal ”right to know” what is going on within the European institutions, which is a prerequisite in a participatory democracy, where decisions are taken "as closely as possible to the citizen”. In the absence of general rules on the right of public access to information or to data held by the EU institutions, European citizens’ ”right to know” and to participate ”as closely as possible” in the decision-making process must therefore be found elsewhere.
+Therefore, internal rules cannot be regarded as measures conferring on European citizens a substantive right of access to documents, to information, or to data held by the EU institutions. They are not intended to vest in European citizens a formal "right to know" what is going on within the European institutions, which is a prerequisite in a participatory democracy, where decisions are taken "as closely as possible to the citizen". In the absence of general rules on the right of public access to information or to data held by the EU institutions, European citizens' "right to know" and to participate "as closely as possible" in the decision-making process must therefore be found elsewhere.
As a preliminary conclusion, Rule 115 does not in itself confer any rights on European citizens. Nevertheless, as compliance with internal Rules of Procedure may constitute an essential procedural requirement, and may in some circumstances have legal effects vis-à-vis third parties, their breach can give rise to an action for annulment before the EU Courts. Indeed, procedural rules laid down in Rule 115 constitutes an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU and its infringement leads to the nullity of the measure thereby vitiated.
-In the light of the Court's judgment in European Parliament v. Council, that rule is an expression of the democratic principles on which the European Union is founded. In particular, the Court has already stated that the Parliament’s involvement in the decision-making process is the reflection, at the EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly.&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.&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).
== The Principle of Openness and the Right of Access to Information: A Basis for Imposing Free Software and Open Standards ? ==
@@ -135,21 +143,21 @@ The first real step towards allowing the public a right of access to documents h
Article 1(2) and Article 10(3) of the Treaty establishing the European Union (TEU) states that in the European Union decisions are to be taken as "openly as possible" and ''as closely as possible'' to the citizen.
-In this respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing in or having its registered office in a Member State, is to have a right of access to documents of the Union’s institutions, bodies, offices, and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, according to the second subparagraph of Article 15(3), the general principles and limits on grounds of public or private interest governing this right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. In accordance with the third subparagraph of Article 15(3) TFEU, each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph of Article 15(3) TFEU.
+In this respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing in or having its registered office in a Member State, is to have a right of access to documents of the Union's institutions, bodies, offices, and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, according to the second subparagraph of Article 15(3), the general principles and limits on grounds of public or private interest governing this right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. In accordance with the third subparagraph of Article 15(3) TFEU, each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph of Article 15(3) TFEU.
-It should be noted at the outset that the General Court has held that Article 1, para. 2 EU and Article 255 EC did not have direct effect, and could therefore not form the basis of a request for disclosure of a document of an institution. The first provision was not regarded as "clear"&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"&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>
-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" &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:
-&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>
+&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>
-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.&lt;ref>Case C-353/99 P Council v Hautala [2001] ECR I-9565, paragraph 31&lt;/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>
-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.&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:
@@ -157,19 +165,19 @@ The existence of a "principle of openness" is confirmed by Art. 15 of the Treaty
=== Charter of Fundamental Rights of the European Union ===
-Similarly, Article 42 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 (‘Charter of Fundamental Rights’) also acknowledges this right:
+Similarly, Article 42 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 ('Charter of Fundamental Rights') also acknowledges this right:
&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>
+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>
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 &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>
-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,&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 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>.
@@ -181,21 +189,21 @@ Moreover, to give effect to the right of access to information, States Parties s
&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>.
+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>.
== Legislative Openness ==
Ever since the Treaty of Amsterdam the concept of "the legislative" has had a place in the language of the EU Treaties. Under the second subparagraph of Article 207(3) EC the Council was already required to define "the cases in which it is to be regarded as acting in its legislative capacity" to allow the right of access to documents under Article 255(1) EC to be exercised.
-In the realm of secondary legislation, Recital 6 in the Preamble to Regulation No 1049/2001 states that "[w]ider access should be granted to documents in cases where the institutions are acting in their legislative capacity." The Treaty of Amsterdam enshrined both the right of access to documents of the institutions, on the one hand, and referred to the special consideration to be given to the ‘legislative capacity’ of the Council, on the other. It has been argued that this indicated that the appropriate context for exercising the right of access was where the Council was acting in a "legislative capacity", thus acknowledging the close relationship that, in principle, exists between legislative procedures and the principles of openness and transparency &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>.
+In the realm of secondary legislation, Recital 6 in the Preamble to Regulation No 1049/2001 states that "[w]ider access should be granted to documents in cases where the institutions are acting in their legislative capacity." The Treaty of Amsterdam enshrined both the right of access to documents of the institutions, on the one hand, and referred to the special consideration to be given to the 'legislative capacity' of the Council, on the other. It has been argued that this indicated that the appropriate context for exercising the right of access was where the Council was acting in a "legislative capacity", thus acknowledging the close relationship that, in principle, exists between legislative procedures and the principles of openness and transparency &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>.
On a comparative note, and despite the differences that may exist between national legislation and EU "legislation", or between Member State legislatures and the EU "legislature", the "legislative procedure" by which the Council and the European Parliament are bound, is conceptually very close to the national "legislative procedure", speaking from the point of view of its underlying purpose and thus the principles on which it must be based. In the end, they have in common the need to satisfy the imperative requirements of democratic legitimacy.
-As the Advocate General correctly pointed out in Case C‑280/11 P Council v Access Info Europe:
+As the Advocate General correctly pointed out in Case C-280/11 P Council v Access Info Europe:
-&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;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 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