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@@ -155,7 +155,7 @@ On a comparative note, and despite the differences that may exist between nation As the Advocate General correctly pointed out in Case C-280/11 P Council v Access Info Europe: -<blockquote>'Legislating' is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, 'transparent'. Otherwise, it would not be possible to ascribe to 'law' the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate. +<blockquote>"Legislating" is, by definition, a law-making activity that in a democratic society can only occur through the use of a procedure that is public in nature and, in that sense, "transparent". Otherwise, it would not be possible to ascribe to "law" the virtue of being the expression of the will of those that must obey it, which is the very foundation of its legitimacy as an indisputable edict. In a representative democracy, it must be possible for citizens to find out about the legislative procedure, since if this were not so, citizens would be unable to hold their representatives politically accountable, as they must be by virtue of their electoral mandate. In the context of this public procedure, transparency therefore plays a key role that is somewhat different from its role in administrative procedures. While, in administrative procedures, transparency serves the very specific purpose of ensuring that the authorities are subject to the rule of law, in the legislative procedure it serves the purpose of legitimising the law itself and with it the legal order as a whole.<ref>Opinion of Advocate General Cruz Villalón in Case C-280/11 P Council v Access Info Europe, EU:C:2013:325</ref></blockquote> @@ -163,13 +163,16 @@ In its judgment in Sweden and Turco v Council,<ref>(EU:C:2008:374)</ref> the Cou The following Recitals in the Preamble to Regulation No 1049/2001 are relevant in this respect: -<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. - +<blockquote> +<ol> +<li>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.</li> +<li>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.</li> +</ol> [...] - -(6) Wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions' decision-making process. Such documents should be made directly accessible to the greatest possible extent.</blockquote> +<ol start="6"> +<li>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.</li> +</ol> +</blockquote> The Court has confirmed that the considerations of legislative openness are clearly of particular relevance where the Council is acting in its legislative capacity: "Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis for a legislative act. The possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights".<ref>Sweden and Turco v Council, paragraph 46 and Council of the European Union v Access Info Europe, paragraph 00</ref> @@ -223,13 +226,13 @@ Rule 115 states that "Parliament shall ensure that its activities are conducted <ul> <li>adj. <ol> - <li>Being or situated at the most distant limit or point; farthest: the utmost tip of the peninsula.</li> - <li>Of the highest or greatest degree, amount, or intensity; most extreme: a matter of the utmost importance.</li> + <li>Being or situated at the most distant limit or point; farthest: ''the utmost tip of the peninsula''.</li> + <li>Of the highest or greatest degree, amount, or intensity; most extreme: ''a matter of the utmost importance''.</li> </ol> </li> <li>n. <ol> - <li>The greatest possible amount, degree, or extent; the maximum: worked every day to the utmost of her abilities.<ref>American Heritage®Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. As reported by The Free Dictionary, available at http://www.tfd.com/utmost</ref> </li> + <li>The greatest possible amount, degree, or extent; the maximum: ''worked every day to the utmost of her abilities''.<ref>American Heritage®Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. As reported by The Free Dictionary, available at http://www.tfd.com/utmost</ref> </li> </ol> </li> </ul> @@ -280,11 +283,11 @@ In Recital 9, the PSI Directive purports to build on the existing access regimes An addition to Article 2 of the PSI Directive, introduced by Directive 2013/37/EU <ref>See note above</ref>, provides a number of useful definitions for the purpose of this study, since the European legislator has made an attempt to define open format and open standards as follows: <blockquote> -'machine-readable format' means a file format structured so that software applications can easily identify, recognize and extract specific data, including individual statements of fact, and their internal structure; +"machine-readable format" means a file format structured so that software applications can easily identify, recognize and extract specific data, including individual statements of fact, and their internal structure; -'open format' means a file format that is platform-independent and made available to the public without any restriction that impedes the re-use of documents; +"open format" means a file format that is platform-independent and made available to the public without any restriction that impedes the re-use of documents; -'formal open standard' means a standard which has been laid down in written form, detailing specifications for the requirements on how to ensure software interoperability; +"formal open standard" means a standard which has been laid down in written form, detailing specifications for the requirements on how to ensure software interoperability; </blockquote> Under the new article 5.1 on available formats, public sector bodies shall make their documents available in any pre-existing format or language, and, where possible and appropriate, in open and machine-readable format together with their metadata. Both the format and the metadata should, in so far as possible, comply with formal open standards. However, this does not imply an obligation for public sector bodies to create or adapt documents or provide extracts in order to comply with that obligation where this would involve disproportionate effort, going beyond a simple operation. @@ -300,27 +303,21 @@ In its self assessment, the European Union stressed that it "has for years been The challenges identified by the EU for making further progress towards the openness of information resources were considered mainly practical and technical, namely: <blockquote> - * making data available in an open format; - * enabling semantic interoperability; - * ensuring quality, documentation and where appropriate reconciliation across different data sources; - * implementing software solutions allowing easy management, publication or visualisation of datasets; - -* simplifying clearance of intellectual property rights.<ref>EU implementation of the G8 Open Data Charter, Open data context, page 2, available at http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489</ref></blockquote> +* simplifying clearance of intellectual property rights.<ref>EU implementation of the G8 Open Data Charter, Open data context, page 2, available at http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489</ref> +</blockquote> The EU has furthermore committed to promoting the application of the principles of the G8 Open Data Charter to all EU Member States within the context of a range of ongoing activities, in particular through ensuring the implementation of Directive 2013/37/EU of 26 June 2013 revising Directive 2003/98/EC on the re-use of public sector information (or the PSI Directive as defined in the previous section) which, according to the EU: <blockquote> * ensures that publicly accessible content can be reused in compliance with the Directive; - * encourages free provision of public sector information (government data) for reuse and lowering the cost of reuse of government data by introducing a new maximum ceiling for reuse based on marginal costs; - * expands the scope of application of the EU Directive to certain cultural institutions; - -* defines 'machine-readable format' and 'open format' and encouraging the use of those formats;<ref>EU implementation of the G8 Open Data Charter, EU Commitment 4: Promoting the application of the principles of the G8 Open Data Charter in all 28 EU Member States, page 8, available at http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489</ref></blockquote> +* defines "machine-readable format" and "open format" and encouraging the use of those formats;<ref>EU implementation of the G8 Open Data Charter, EU Commitment 4: Promoting the application of the principles of the G8 Open Data Charter in all 28 EU Member States, page 8, available at http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489</ref> +</blockquote> === Re-use of EU Institution documents === @@ -405,13 +402,9 @@ One of the tasks of the project was indeed to find some common ground as to what <blockquote> To attain interoperability in the context of pan-European eGovernment services, guidance needs to focus on open standards. The following are the minimal characteristics that a specification and its attendant documents must have in order to be considered an open standard: - * The standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.). - * The standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee. - * The intellectual property -- i.e. patents possibly present -- of (parts of) the standard is made irrevocably available on a royalty-free basis. - * There are no constraints on the re-use of the standard.<ref name=EIFv1>{{cite book|title=European Interoperability Framework For Pan-European eGovernment Services|isbn=92-894-8389-X|page=9|url=http://ec.europa.eu/idabc/servlets/Docd552.pdf?id=19529|accessdate=7 August 2014}}</ref> </blockquote> @@ -421,7 +414,7 @@ To our knowledge, that was the first attempt to define open standards in an offi === The European Interoperability Framework V.2 === -In 2006, the European Commission has started the revision of the European Interoperability Framework<ref>{{cite web|title=Revision of the EIF and AG|url=http://ec.europa.eu/idabc/en/document/7728.html|accessdate=7 August 2014}}</ref>. The effort was completed with the communication of Version 2 in December 2010.<ref name=EIFv2>{{cite web|title=Annex 2 to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions 'Towards interoperability for European public services' COM(2010) 744 final +In 2006, the European Commission has started the revision of the European Interoperability Framework<ref>{{cite web|title=Revision of the EIF and AG|url=http://ec.europa.eu/idabc/en/document/7728.html|accessdate=7 August 2014}}</ref>. The effort was completed with the communication of Version 2 in December 2010.<ref name=EIFv2>{{cite web|title=Annex 2 to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions "''Towards interoperability for European public services''" COM(2010) 744 final |url=http://ec.europa.eu/isa/documents/isa_annex_ii_eif_en.pdf|accessdate=7 August 2014}}</ref> Reportedly due to intense lobbying by industry representatives,<ref>{{cite web|title=European Commission Betrays Open Standards|url=http://blogs.computerworlduk.com/open-enterprise/2010/05/european-commission-betrays-open-standards/index.htm|website=ComputerWorld UK -- Blog|accessdate=7 August 2014}}</ref> <ref>{{cite web|title=European Interoperability Framework supports openness|url=http://opensource.com/government/10/12/european-interoperability-framework-supports-openness|website=Opensource.com|accessdate=7 August 2014}}</ref> notably in the new document there is no reference to standards at all, let alone to open standards, but more vaguely to "open specifications".<ref>EIFv2 , page 26</ref> @@ -436,11 +429,8 @@ The very definition of open specification in the EIFv2 is far more vague than th <blockquote> If the openness principle is applied in full: - * All stakeholders have the same possibility of contributing to the development of the specification and public review is part of the decision-making process; - * The specification is available for everybody to study; - * Intellectual property rights related to the specification are licensed on FRAND terms or on a royalty-free basis in a way that allows implementation in both proprietary and open source software. </blockquote> @@ -513,7 +503,6 @@ The Free Software Definition (by the Free Software Foundation)<ref>{{cite web|ti <blockquote> A program is free software if the program's users have the four essential freedoms: - * The freedom to run the program as you wish, for any purpose (freedom 0). * The freedom to study how the program works, and change it so it does your computing as you wish (freedom 1). Access to the source code is a precondition for this. * The freedom to redistribute copies so you can help your neighbor (freedom 2). @@ -553,7 +542,7 @@ So far we have dealt with Free and Open from the perspective of having an unimpa However, as with any decision, decision-makers are not always at liberty to choose what is theoretically best. '''Budgetary restrictions''', for instance, are an obvious obstacle to this freedom, therefore choices need to be made under the condition of best allocation of non-unlimited resources. '''Time''' is another constraint. If, due to circumstances, choosing a solution requires considerable time, a quicker solution might be preferable, albeit suboptimal in other terms. '''Technical constraints''' also exist, and interact heavily with both of the previously mentioned ones. -"Technical constraints" deriving from what already is in place (technical infrastructures, previous investments in technology, archives) is what is usually called '''"lock-in"'''. +"Technical constraints" deriving from what already is in place (technical infrastructures, previous investments in technology, archives) is what is usually called ''"lock-in"''. Lock-in is a phenomenon where previous choices reduce the freedom to make future choices, because making them would mean relinquishing a seizable part of the investment made in the past. Therefore, it seems to make sense to choose the solution that best adapts to the existing environment, albeit suboptimal in general terms, because the best option would be anti-economical due to the need to change substantial parts of the existing environment. This also generates, and most of the time increases, the lock-in. @@ -562,23 +551,19 @@ Locked-in solutions might not allow achievement of the goal of transparency, bec The Commission has analysed this phenomenon with a lot of care, although sometimes it proved itself unwilling to take the medicine it prescribed to others,<ref>{{cite web|title=European Commission renews controversial Microsoft contract|url=http://www.computerweekly.com/news/1280095047/European-Commission-renews-controversial-Microsoft-contract|accessdate=9 December 2014}}</reF> within Action 23 of the Digital Agenda.<ref>{{cite web|title=Action 23: Provide guidance on ICT standardisation and public procurement|url=http://ec.europa.eu/digital-agenda/content/action-23-provide-guidance-ict-standardisation-and-public-procurement|accessdate=8 August 2014}}</ref> The Commission identified lock-in as an important problem that can only be cured with the adoption of open standards -- although, as we have seen before, it failed to define properly what an open standard is and it showed a weak spine in taking the concept of openness where others took it. <blockquote> -The Digital Agenda for Europe identified "lock-in" as a problem. Building open ICT systems by making better use of standards in public procurement will improve and prevent the lock-in issue.<ref>{{cite web|title=Open Standards|url=http://ec.europa.eu/digital-agenda/en/open-standards|accessdate=8 August 2014}}</ref> +The Digital Agenda for Europe identified ''"lock-in"'' as a problem. Building open ICT systems by making better use of standards in public procurement will improve and prevent the lock-in issue.<ref>{{cite web|title=Open Standards|url=http://ec.europa.eu/digital-agenda/en/open-standards|accessdate=8 August 2014}}</ref> </blockquote> -Therefore standards are a way to avoid lock-in. The Commission carefully avoids using the wording "open standards", but many indications and references make it clear that it points to that when it refers to "standard based procurement". The two main working documents describing how public procurement should be done to avoid lock-in are in - +Therefore standards are a way to avoid lock-in. The Commission carefully avoids using the wording "open standards", but many indications and references make it clear that it points to that when it refers to "standard based procurement". The two main working documents describing how public procurement should be done to avoid lock-in are in: * A Communication titled "Against lock-in: building open ICT systems by making better use of standards in public" <ref>{{cite web|title=Against lock-in: building open ICT systems by making better use of standards in public|url=http://ec.europa.eu/digital-agenda/news/against-lock-building-open-ict-systems-making-better-use-standards-public|accessdate=8 August 2014}}</ref> - * A staff working document "Guide for the procurement of standards-based ICT -- Elements of Good Practice" <ref>{{cite web|title=Guide for the procurement of standards-based ICT -- Elements of Good Practice|url=http://ec.europa.eu/digital-agenda/news/guide-procurement-standards-based-ict-%E2%80%94-elements-good-practice|accessdate=8 August 2014}}</ref> Proceeding from the above, we can safely take a few conclusions: - * in order be free to adopt the best tools available, now and in a medium to long term, the Parliament has a special burden to avoid lock-in. * Because the best tool to avoid lock-in, according to the Commission (but with the agreement of a vast literature, as cited in the two above documents), is a standard-based approach, the Parliament is especially bound to adopt a standard-based approach in procurement. * Not only transparency mandates the use of open standards for the outward channel, but transparency leans heavily towards the use of standard-based decisions and modular, vendor independent, lock-in averted solutions. The cited documents take no stance towards (or against, for that matter) '''Free Software''' in the lock-in avoidance context. However it seems that one cannot take any conclusions from this omission, only that the lock-in avoidance shall be taken into consideration with all kind of licensing regimes or development environment or technology. At the same time there seems to be no contradiction in the principle we have introduced that Free Software enhances the anti-lock-in power of the user (so much that even the user has the permission to be developer). And we reiterate the fundamental concepts: - * Truly Free Software solutions are outside the control of the vendor. The vendor can have a temporary control or even have a stronghold over one solution, but examples exist that when this control is too tight and against the interests of the Community, the ability to "fork" is an essential tool that exerts a constraint on any dictatorial vendor.<ref>A useful discussion on what the ability to fork means in terms of relieving competition concerns can be found in {{cite web|title=Commission Decision of 21.01.2010 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement(Case No COMP/M.5529 -- Oracle/ Sun Microsystems)|url=http://ec.europa.eu/competition/mergers/cases/decisions/m5529_20100121_20682_en.pdf|accessdate=10 November 2014}}, Section 4.4.3 (pag. 118 onwards).</ref> * The availability of source code, and possibly a healthy and diverse development community, is a guarantee that there is no orphan work or constrained upgrade path. Free Software allows the choice to buy or make, or to have made by others unrelated to the copyright holder. * Proprietary software vendors have incentives and abilities to lock clients in <ref>The most striking example is probably the ''Microsoft'' case {{cite web|title=Commission Decision of 24.03.2004 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-3/37.792 Microsoft)|url=http://ec.europa.eu/competition/antitrust/cases/dec_docs/37792/37792_4177_1.pdf|accessdate=10 November 2014}} </ref>. Free Software vendors have less, or even no incentives toward locking their clients in, because efforts would be largely ineffective or impossible. De facto, most of Free Software project tend to use open standards,and non open standards and format only if network effects make the former non viable. @@ -703,7 +688,8 @@ In terms of publishing documents, the conclusion has been: <blockquote> * PDF/A or HTML for viewing government documents -* Open Document Format (ODF) [ISO/IEC IS26300] for sharing or collaborating on government documents<ref>{{cite web|title=Open document formats selected to meet user needs|url=https://www.gov.uk/government/news/open-document-formats-selected-to-meet-user-needs|accessdate=13 October 2014}}</ref></blockquote> +* Open Document Format (ODF) [ISO/IEC IS26300] for sharing or collaborating on government documents<ref>{{cite web|title=Open document formats selected to meet user needs|url=https://www.gov.uk/government/news/open-document-formats-selected-to-meet-user-needs|accessdate=13 October 2014}}</ref> +</blockquote> == Surveillance and privacy == |