Ensuring utmost transparency ? Free Software and Open Standards under the Rules of Procedure of the European Parliament

Author:Carlo Piana - Ulf Öberg
Position:Founder and Partner, Array - Founder and Managing Partner, Öberg & Associés
Pages:11-49
Ensuring utmost transparency ‒
Free Software and Open Standards under the Rules of Procedure of the European Parliament 11
Ensuring utmost transparency ‒ Free Software
and Open Standards under the Rules of
Procedure of the European Parliament
Carlo Piana,a Ulf Öberg,b
(a) Founder and Partner, Array;
(b) Founder and Managing Partner, Öberg & Associés.
With a Foreword by Prof. Douwe Korff c
(c) Associate of the Oxford Martin School
of the University of Oxford
DOI: 10. 5033 / ifosslr.v6i1.105
Abstract
Going beyond the constitutional requirement of openness laid down
by the Treaties, the European Parliament has imposed upon itself a
further commitment to conduct its activities with the utmost
transparency. Our study suggests that ensuring this "utmost
transparency" is not only an essential procedural requirement but
actually a fundamental democratic principle which brings precise
duties.
Thus, the principle of openness should guide Parliament's choices of
IT hardware and software systems and, as technology evolves, these
choices should be continuously and pro-actively reassessed. By its
own standard, Parliament should choose the systems and technologies
that are the most open and the most accessible to the public.
We conclude that the Rules of Procedure of the European Parliament
should whenever possible make Free Software and Open Standards
mandatory for all systems and data used for the work of Parliament. In
our view, that is the most appropriate way for the Parliament to meet
its own standard of "utmost transparency".
Keywords
Law; information technology; Free and Open Source Software;
European Public Law;
Foreword
By Prof. Douwe Korff
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12 Ensuring utmost transparency ‒
Free Software and Open Standards under the Rules of Procedure of the European Parliament
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 accountabilit y 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 dut y 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.
Crucially, the authors have managed to draw on all these sources to indicate clearly what should be
done in practical, technical terms by the officials managing the information and IT systems
relating to the work of the European Parliament to truly and fully achieve the legal requirement of
"utmost transparency". This report will become a major point of reference for the debates on those
steps. It is to be greatly commended for having taken the issue seriously (rather than just rely on
all-too-easy slogans or political rallying cries). It cannot be dismissed by those with the power to
take action. Rather, it should lead to Parliament clearly instructing its civil servants to take the
steps needed to achieve the "utmost transparency" required of the institution. The
recommendations should be fully implemented: that will enhance democracy, accountabilit y and
public participation, and trust in the Union at a time of doubt and insecurity.
London 15 November 2014.
Scope and method of analysis
This study arises from a proposal by the Greens/EFA, backed by two Plenar y decisions, that the
European Parliament investigates its own transparency obligations under its Rules of Procedure
with regard to Free Software and Open Standards.1
The scope is therefore to verify whether, in general or in single areas, the principle of openness
and the right of access to information mandates, and if so to what extent, the use of Free Software
1 "The Greens/EFA group in the European Parliament has commissioned a study into the implications of Rule 103 of the
European Parliament's Rules of Procedure for the Parliament's decisions, policies, procedures, etc., with regard to Free
Software and Open Standards [...] The study will assess whether, and if so how and to what extent, Rule 103 can
inform the EP's ICT decisions, policies, procedures, etc. (including procurement decisions) with regard to Free
Software and Open Standards." From "Greens/EFA commissions "Rule 103" study" http://icg.greens-
efa.eu/pipermail/hub/2014-May/000130.html
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and Open Standards, or what kind of preference towards it, if any.
Distilling general principles and propositions into practical guidelines is largely a matter of
political decisions, therefore extraneous to this study. Conversely, the aim of this study is to bridge
the gap between an overly laconic provision and the strategical administration of the IT, by
utilising the available information in different trajectories.
The first trajectory is top-down, and analyses the principle of openness from a consti tutional point
of view. This aims to provide the cardinal points to the rest of the analysis.
The second trajectory is lateral, and aims to retrieve useful material from neighbouring areas, both
in terms of policy and legislation, that could be useful to define a sort of "acquis" in terms of
openness of EU bodies and institutions, where available and relevant.
The third trajectory is bottom-up, and analyses single areas of IT, which have been discussed in the
recent past or can be exempl ary, their possible failures and shortcomings in terms of openness and
possible actions and directions to solve the situation.
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 1049/20012 and by Rule
1163, 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 ri ght to access to documents as such is only t reated 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.
The Constitutional Principle of Openness under European Law
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 provides that:
Parliament shall ensure that its activities are conducted with the utmost transparency, in
2 Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access
to European Parliament, Council and Commission documents http://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?
uri=CELEX:32001R1049&from=EN
3 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-116+DOC+XML+V0//EN&language=EN&navigationBar=YES
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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.4
The European Parliament has been a champion in promoting not only openness of the legislative
process and the access to le gislative 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:
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.5
In its judgement, the Court stressed that the domestic legislation of most Member States enshrin es,
in a general manner, the public’s right of access to documents held by public authorities as a
constitutional or le gislative 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 le gal 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.6 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.
4 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&language=EN&navigationBar=YES
5 Case C-58/94 Netherlands v Council [1996] ECLI:EU:C:1996:171 at para 18.
6 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 Ye arbook of European Legal Studies,
Vol. 2, 1999, s. 303-328
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According to the case law of the Court, the purpose of the Community institutions’ internal Rules
of Procedure is to organise the int ernal 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.
As a preliminary conclusion, Rul e 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.7 Not only has Parliament
imposed upon itself that it shall ensure that its activities are conducted with the utmost
transparency, but its actions shall also conform with the Principle of Openness enshrined in the
Treaties and in the Charter, and the Right of Access to Information in Art. 10 of the European
Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).
The Principle of Openness and the Right of Access to Information: A Basis for Imposing Free
Software and Open Standards ?
The first real step towards allowing the public a right of access to documents held by the
Community institutions dates back to 7 February 1992 when the Member States signed the Final
Act to the Maastricht Treaty.8. In Declaration No. 17 to that Act, the Member States pointed to the
close connection between the transparency of the decision-making process and the democratic
nature of the Community institutions. Nowadays, the principle of openness in European Union law
has solid roots, as the very text of the Rule 115 makes clear, in the fundamental Treaties of the
European Union.
7 Judgement European Parliament v. Council EU:C:2014:2025, paragraph 80-81
8 Broberg, M., Access to documents: a general principle of Community law?, European Law Review (2002), pp. 196,
197
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The Treaties
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.
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"9, 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. 10
In a different strand of its case-law, the General Court has referred to the "principle of the right to
information" 11, and to the "principle of transparency" 12, 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:
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.13
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.14
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
9 Within the meaning of the judgement in Case 26/62 Van Gend en Loos [1963] ECR 1
10 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
11 Case T-14/98 Hautala v Council [1999] ECR II-2489, paragraph 87
12 Case T-211/00 Kuijer v Council [2002] ECR II-485, paragraph 52
13 Case T 264/04 WWF European Policy Programme v Council [2007] ECR II-911 at para 76.
14 Case C-353/99 P Council v Hautala [2001] ECR I-9565, paragraph 31
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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 be en 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" 15.
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.16
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.17 The Court has in this
regard clarified that the "principle of openness" stated in a general manner in t he second paragraph
of Article 1 TEU is "crystallised" b y Regulation 1049/2001.18 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:
In order to promote good governance and ensure the participation of civil society, the
Union institutions, bodies, offices and agencies shall conduct their work as openly as
possible. [emphasis added]
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:
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.
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 t o
documents of the institutions. In the context of t he European Parliament documents, it should be
noted that Article 4 of the Statute for Members of the European Parliament 19 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
15 Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14
16 Pitsiorlas v Council and ECB, paragraph 221-223
17 Sweden v Commission, C-64/05 P, EU:C:2007:802
18 Commission v Agrofert Holding EU:C:2012:394, paragraph 88
19 OJ 2005 L 262, p. 1
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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 whethe r Article
15 TFEU and Article 42 of the Charter of Fundamental Rights of the Europ ean Union allow such
documents to be excluded from the right of access in the future.20
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 re ceive 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 21 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.22
In a recent judgment of 25 June 2013, for the case of Youth Initiative for Human Rights v Serbia,23,
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 a ccess”, in that the notion
of “freedom to receive information” embraces a right of access to information.24
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 25.
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 embr aces a right
of access to information held by public bodies. Such information includes records held b y a public
body, regardless of the form in which the information is stored, its source, and the date of
production. As the C ommittee 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.
20 Opinion Afton Chemical EU:C:2010:258
21 See Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998-I).
22 Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 44, 14 April 2009.
23 Application no. 48135/06, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120955
24 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/
25 Document CCPR/C/GC/34 of 12 September 2011, §§ 18, 3, 15)
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Paragraph 3 of the General Comment No. 34 provides as follows:
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.
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):
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.
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). 26.
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 c apacity’ of the Council, on the other. It has been argued that this indicated that
the appropriate context for ex ercising 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 27.
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
26 Interesting a reading is the work is the work Schauer, Frederick (2011). "Transparency in Three Dimensions".
University of Illinois Law Review 2011 (4). pp. 1339–1358. Retrieved 2014-08-08. although in the US constitutional
environment
27 Opinion of Advocate General Cruz Villalón in Case C-280/11 P Council v Access Info Europe, EU:C:2013:325
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20 Ensuring utmost transparency ‒
Free Software and Open Standards under the Rules of Procedure of the European Parliament
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:
’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.28
In its judgment in Sweden and Turco v Council,29 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:
(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.
(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.
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
28 Opinion of Advocate General Cruz Villalón in Case C-280/11 P Council v Access Info Europe, EU:C:2013:325
29 (EU:C:2008:374)
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rights".30
The theoretical underpinnings of the Principle of Openness and of legislative openness has thus
acquired a solid foundation in the Treaties and in the case-law of the court. However, due to the
eternal tide wave and purported conflict between Openness and Efficiency, Parliament has in
practice struggled to live up to the Principle of Openness by resorting to informal decision-making
procedures. As Nikoleta Yordanova has correctly noted:
Traditionally, the parliamentary committees have offered important venues for political
involvement of extra-parliamentary actors due to the openness and transparency of their
meetings. In the past fifteen years, however, the EP has been resorting ever more often to
informal decision-making, whereby the parliamentary decisions are not reached
internally following deliberations and debate in committee and plenary but in secluded
trilogue meetings of limited number of representatives of the three EU legislative
institutions – the EP, the Council of Ministers and the European Commission.
[...]
The implications of the switch to an informal mode of legislating for representation in the
EP are twofold – decreased input and, potentially also, output legitimacy. Specifically, the
decrease in committee influence has curtailed the channels of representation of interest
groups to affect decision-making, depriving them of an effective tool to monitor and
shape the legislative process and outcomes by raising timely demands. A possible
implication of this is diminished receptiveness of legislators to constituents’ interests.
Moreover, the lack of transparency of the secluded inter-institutional meetings has limited
the ability of constituents to monitor their representatives’ policy bargaining, positions
and the concessions, and, consequently, to evaluate how responsive legislators are to
their preferences and demands.31
The Need for Lawmakers to Deliberate in Private
The European Union, the Member States and 19 other States are parties to the Aarhus Convention
on Access to Information, Public Participation in Decision-Making and Access to Justice in
Environmental Matters (‘the Convention’), which entered into force on 30 October 2001. The
Convention is based on three ‘pillars’ – access to information, public participation, and access to
justice. Its preamble includes the following recitals:
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,
Mirroring Article 2 of the Convention, the second sentence of Article 2(2) in Directive 2003/4/EC
30 Sweden and Turco v Council, paragraph 46 and Council of the European Union v Access Info Europe, paragraph 00
31 Nikoleta Yordanova, Collusion in Bicameral EU Decision-making Efficiency at the expense of transparency and
representation?, Paper prepared for the Conference: New Trends in Political Representation, available at
http://nikoletayordanova.net/wp-content/uploads/exeter.pdf
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22 Ensuring utmost transparency ‒
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on public access to environmental information32 allows Member States to ex clude 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
2005/370,33 the annex to which contains a declaration by the European Community which reads, in
so far as relevant, as follows:
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].
In ratifying the Convention on 20 May 2005, Sweden lodged a reservation which, in so far as is
relevant, reads as follows:
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.34
In accordance with Directive 2003/4/EC, public authorities must in principle be required to make
environmental information held b y or for them available to any applicant at his request. However,
the Directive permits Member States to exclude public bodies acting in a legislative capacity from
the definition of a ‘public authority’. In addition, access may be refused to certain types of
document, or if disclosure would adversely affect the confidentialit y of proceedings of authorities
where such confidentiality is provided for by law.
In her opinion in Flachglas Torgau, AG Sharpstone summarised the dilemma as follows:
The performance of both judicial and legislative functions could be impaired if
information of all kinds concerning each and every stage of the process – analysing the
relevant issues and data, deriving conclusions from that analysis and formulating a final
decision – could be demanded of right at all times by any member of the public. It seems
reasonable to assume that considerations of that kind were in the minds of those who
initially drafted the first of the instruments concerned and have remained, albeit
implicitly, in the minds of those who have participated in the drafting of the subsequent
instruments.
Yet it is by no means desirable, nor would it appear consistent with the overall thrust of
the Convention or the Directive, for legislative or judicial activity to take place in
impenetrable secrecy. It is generally considered necessary, in order to ensure the rule of
law and democratic government, for both courts of law and legislative assemblies to
32 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’)
33 Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the
Convention on access to information, public participation in decision-making and access to justice in environmental
matters (OJ 2005 L 124, p. 1)
34 Sweden's reservation is available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-
13&chapter=27&lang=en#EndDec
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operate in the presence of the public (or at least of the media as an intermediary) other
than in wholly exceptional circumstances – and it is, moreover, generally accepted that
such circumstances are more common in the course of judicial than of legislative activity.
Other than in wholly exceptional circumstances, therefore, in neither case should
decisions be taken on the basis of facts, or for reasons, which are concealed from
citizens.35
Conduct of Business as "Openly as Possible" or with the "Utmost Transparency"
Rule 115 states that "Parliament shall ensure that its activities are conducted with the utmost
transparency", which on a textual interpretation goes beyond the more relative principle of
openness enshrined in Article 1 TEU, whereby “decisions are taken as openly as possible”. Indeed,
it strikes that Rule 115 uses the word utmost, which is a far stronger word than "as openly as
possible" used for other institutions:
ut·most
adj.
1. Being or situated at the most distant limit or point; farthest: the utmost tip of the
peninsula.
2. Of the highest or greatest degree, amount, or intensity; most extreme: a matter of the
utmost importance.
n.
The greatest possible amount, degree, or extent; the maximum: worked every day to the
utmost of her abilities.36
Therefore it is clear that there is no effort to spare in order to bring the "utmost" openness or
transparency, in other words, openness to the most extreme consequences. Parliament has in this
respect imposed upon itself a far higher standard to meet in order to ensure openness than any
other institution.
This means that the balancing test at hand should at least equal, and may even exceed, the one laid
down in the case-law of the Court under the Principle of Openness. To this effect, the Court has
held that assessing whether or not information is confidential therefore requires that the legitimate
interests opposing disclosure be weighed against the public interest in the activities of t he
Community institutions taking place as openly as possible37.
A similar construction has been adopted by the Court as regards access to documents. The Court
has held that since they derogate from the "principle of the widest possible public access to
documents", exceptions to that principle must be interpreted and applied strictly 38. In Council v In
't Veld, access was requested to an opinion of the Council’s Legal Service, issued in t he context of
the adoption of the Council’s decision authorising the opening of negotiations, on behalf of the
European Union, in respect of the proposed agreement. Having established the "principle of the
35 Opinion Flachglas Torgau EU:C:2011:413
36 http://www.tfd.com/utmost American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000
by Houghton Mifflin Company. As reported by The Free Dictionary
37 General Court Case T-237/05 Éditions Jacob v Commission [2010] ECR II-2245, citing, to that effect, Bank Austria
Creditanstalt v Commission, paragraph 71, and Case T-474/04 Pergan Hilfsstoffe für industrielle Prozesse v
Commission [2007] ECR II-4225, paragraphs 63 to 66.
38 Council v In 't Veld, EU:C:2014:2039, paragraph 48, Council v Access Info Europe, EU:C:2013:671, paragraph 30 and
the case-law cited.
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widest possible public access to documents", the Court held:
51 However, the mere fact that a document concerns an interest protected by an exception
to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient
to justify the application of that provision (see, to that effect, Commission v Éditions
Odile Jacob, C-404/10 P, EU:C:2012:393, paragraph 116).
52 Indeed, if the institution concerned decides to refuse access to a document which it has
been asked to disclose, it must, in principle, first explain how disclosure of that document
could specifically and actually undermine the interest protected by the exception —
among those provided for in Article 4 of Regulation No 1049/2001 — upon which it is
relying. In addition, the risk of the interest being undermined must be reasonably
foreseeable and must not be purely hypothetical (Council v Access Info Europe,
EU:C:2013:671, paragraph 31 and the case-law cited).
53 Moreover, if the institution applies one of the exceptions provided for in Article 4(2)
and (3) of Regulation No 1049/2001, it is for that institution to weigh the particular
interest to be protected through non-disclosure of the document concerned against, inter
alia, the public interest in the document being made accessible, having regard to the
advantages of increased openness, as described in recital 2 to Regulation No 1049/2001,
in that it enables citizens to participate more closely in the decision-making process and
guarantees that the administration enjoys greater legitimacy and is more effective and
more accountable to the citizen in a democratic system (Council v Access Info Europe,
EU:C:2013:671, paragraph 32 and the case-law cited).39
In the same vein, the European Ombudsman has recognised that the wording and purpose of
Articles 11 and 12 of Regulation 1049/2001 do not imply an obligation on Parliament to have, in
its public register of documents, a reference to each and every document it holds. However, the
Ombudsman found that Parliament should certainl y interpret Articles 11 and 12 of Regulation
1049/2001 in a manner which allows the public to obtain "as complete a picture as possible" of
how Parliament carries out its core tasks. Documents which relate to these core tasks should
therefore, as far as possible, be recorded in Parliament's public register of documents. 40
Against this background, any derogations from the Parliament's Rule 115 that "its activities are
conducted with the utmost transparency" must be interpreted strictly, and in the light of the Court's
case law on the Principle of Openness and the right of access to documents.
It is also clear that Rule 115 section 1 does not just refer to the fact that the works of the
Parliament must be open and public. This is a separate concept, it cannot be a replacement for
openness, as it is dealt with by different provisions, e.g., section 2 of Rule 115:
Debates in Parliament shall be public.
Therefore it is safe to conclude that simply the publicity of the works is not sufficient. On the other
hand, it is evident that those parts that need to be non-public shall be subtracted from the principle
of openness, but this shall be an exception to the rule.
It should be noted that one of the open issues during the negotiations in the Council on the reform
of regulation 1049/2001, is whether some reforms are needed to comply with the Treaty of Lisbon,
which obliges the EU institutions to take decisions “as openly and as closely as possible to the
citizen” and which requires a transparent legislative process. As has been The European Charter of
39 C-350/12 P, Council v In 't Veld, ECLI:EU:C:2014:2039
40 Decision of the European Ombudsman closing the inquiry into complaint 262/2012/OV against the European
Parliament, available at http://www.ombudsman.europa.eu/cases/decision.faces/en/57773/html.bookmark
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Fundamental Rights also now recognises the right of access to EU documents “whatever their
medium”, as a fundamental human right. At the very least the Treaties extend the scope of the right
of access to all EU bodies and it is not clear whether this requires a legislative amendment to do
away with current discrepancies such as different time frames for different EU bodies.
Neighbouring concepts
Re-use of Public Sector Information
The Directive 2003/98/EC on the re-use of public sector information 41 as amended by Directive
2013/ 37/EU 42, also known as the "PSI Directive" 43, establishes a minimum set of rules governing
the re-use and the practical means of facilitating re-use of existing documents held by public sector
bodies of the Member States. Article 2(4) of the PSI Directive defines re-use as "the use by
persons or legal entities of documents held by public sector bodies, for commercial or non-
commercial purposes other than the initial purpose within the public task for which the documents
were produced. Exchange of documents between public sector bodies purely in pursuit of their
public tasks does not constitute re-use".
Article 3 of the PS I Directive entitled ‘General principle’ states that Member States shall ensure
that, where the re-use of documents held by public sector bodies is allowed, these documents shall
be re-usable for commercial or non-commercial purposes in accordance with the conditions set out
in in the Directive.
Recital 9 clarifies that the definition of "document" is not intended to cover computer programmes.
To facilitate re-use, public sector bodies should make their own documents available in a format
which, as far as possible and appropriate, is not dependent on the use of specific software. Where
possible and appropriate, public sector bodies should take into account the possibilities for the re-
use of documents by and for people with disabilities.
In recital 16, the PSI Directive establishes a link between re-use of public sector information and
the "right to knowledge" in the following terms:
Making public all generally available documents held by the public sector - concerning
not only the political process but also the legal and administrative process - is a
fundamental instrument for extending the right to knowledge, which is a basic principle
of democracy. This objective is applicable to institutions at every level, be it local,
national or international.
The PSI Directive does not contain an obligation to allow re-use of documents, and the decision
whether or not to authorise re-use remains with the Member States or the public sector body
concerned. It applies to documents that are made accessible for re-use when public sector bodies
license, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re-use
includes further use of documents within the organisation itself for activities falling outside the
scope of its public tasks. Activities falling outside the public task will typically include supply of
documents that are produced and charged for exclusively on a commercial basis and in
competition with others in the market.
41 Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-utilisation of
public sector information (OJ 2003 L 345, p. 90)
42 Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC
on the re-use of public sector information (OJ L 175, 27.6.2013 p. 1-8)
43 In the remainder of this section, by using "PSI Directive" we make reference to the amended directive.
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In Recital 9, the PSI Directive purports to build on the existing access regimes in the Member
States and does not change the national rules for access to documents. It does not apply in cases in
which citizens or companies can, under the relevant access regime, only obtain a document if the y
can prove a particular interest. At Community level, Articles 41 (right to good administration) and
42 of the Charter of Fundamental Rights of the European Union recognise the right of any citizen
of the Union and any natural or legal person residing or having its registered office in a Member
State to have access to European Parliament, C ouncil and Commission documents. Public sector
bodies should be encouraged to make available for re-use any documents held by them. Public
sector bodies should promote and encourage re-use of documents, including official texts of a
legislative and administrative nature in those cases where the public sector body has the right to
authorise their re-use.
An addition to Article 2 of the PSI Directive, introduced by Directive 2013/37/EU 44, 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:
6. ‘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;
7. ‘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;
8. ‘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;
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 se ctor 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.
Article 11 of the PSI Directive provides a prohibition of exclusive arrangements. Under Article
11.1, the re-use of documents shall be open to all potential actors in the mark et, even if one or
more market players already exploit added-value products based on these documents. Contracts or
other arrangements between the public sector bodies holding the documents and third parties shall
not grant exclusive rights. Under Article 11.2 where an exclusive right is necessary for the
provision of a service in the public interest, the validity of the reason for granting such an
exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three
years. The exclusive arrangements established shall be transparent and made public.
The G8 Open Data Charter
In June 2013, the EU endorsed the G8 Open Data Charter and, with ot her G8 members, committed
to implementing a number of open data activities in the G8 members’ Collective Action Plan.
Commitment 1 of the Collective Action Plan required each member to publish by October 2013
details of how they would implement the Open Data Charter according to their individual national
frameworks. In the EU implementation of the G8 Open Data Charter, it is stressed that compliance
with the G8 Open Data Charter and para. 47 of the June 2013 G8 communique is fully consistent
44 See note above
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with existing EU policy. Particular reference is in particular made to "the many initiatives already
adopted at EU level, including the revised Directive on the re-use of public sector information, the
EU Open Data Portal and the new Commission rules on the re-use of its own documents".
In its self assessment, the European Union stressed that it "has for years been stressing the goal of
opening up data as a resource for innovative products and services and as a means of addressing
societal challenges and fostering government transparency. Indeed, better use of data, including
government data, can help to power the economy, serving as a basis for a wide range of
information products and services and improving the efficiency of the public sector and of
different segments of industry. The European Union aims to be at the forefront of public
administrations in terms of openness in relation to its own documents." It is noteworthy that Open
Data within t he European Union is first and foremost seen as "a resource for innovative products
and services" with economic potential, and only seem to regard Open Data to hold a secondary
function in fostering Open Government.
The challenges identified by the EU for making further progress towards the openness of
information resources were considered mainly practical and technical, namely:
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.45
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:
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;46
Re-use of EU Institution documents
As a rule, the European Commission has allowed re-use of its documents for commercial and non-
45 EU implementation of the G8 Open Data Charter, Open data context, page 2
http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489
46 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
http://ec.europa.eu/information_society/newsroom/cf/document.cfm?action=display&doc_id=3489
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28 Ensuring utmost transparency ‒
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commercial purposes at no charge since 2006, adopting a first decision of 7 April 2006 on re-use
of Commission documents47
According to the seventh recital of this decision, "An open re-use policy at the Commission will
support new economic activity, lead to a wider use and spread of Community information, enhance
the image of openness and transparency of the Institutions, and avoid unnecessary administrative
burden for users and Commission services". Again, the underlying rationale of the decision was to
"support new economic activity", and the ambition in fostering Open Government was reduced
"enhance the image of openness and transparency" of the Institutions.
In 2011, the Commission engaged itself to work towards providing documents in machine-
readable format, where possible and appropriate, and to set up an Open Data Portal to promote the
accessibility and re-use of this information. In December 2012, the European Union Open Data
Portal was launched and provides access to data held by the Commission and other EU institutions
and bodies.48
Re-use of Public Sector Information does not necessarily ensure an Open Government
Obviously, the main purpose of the Public Sector Information Directive (PSI Directive) is to pave
the way for a European information market. At their core, these rules are intended to ensure fair,
proportionate and non-discriminatory conditions for the re-use of such information.
As noted above, the European legislator's push for Open Data has been more driven by
commercial purposes of data mining than in a quest of opening government to external scrutiny. In
some cases the re-use of documents will take place without a licence being agreed. In other cases,
a licence will be issued imposing conditions on the re-use by the licensee dealin g with issues such
as liability, the proper use of documents, guaranteeing non-alteration and the acknowledgement of
source. If public sector bodies license documents for re-use, the licence conditions should be fair
and transparent.
Nevertheless, in creating a private market for Public sector information can have unintended
consequences. According to the directive, public sector bodies should respect competition rules
when establishing the principles for re-use of documents avoiding as far as possible exclusive
agreements between themselves and private partners. However, in ord er to provide a service of
general economic interest, an exclusive right to re-use specific public sector documents may
sometimes be necessary. This may be the case if no commercial publisher would publ ish the
information without such an exclusive right.
On 18 March 2010, the Swedish Government presented its Bill (2009/10:175) on Public
Administration for Democrac y, Participation and Growth. One proposal contained in the Bill was
for a law on re-use of documents emanating from Swedish public administration. On 3 June 2010,
the Act (2010:566) on the re-use of public administration documents entered into force. The
Swedish Agency for Public Management has therefore been assigned to survey the extent to which
Swedish central and local government agencies (public sector bodies) have granted exclusive
rights or arrangements of the kind referred to in Article 11 of the PSI Directive.
The survey shows that five central public sector bodies state that they have granted exclusive
rights for one or more companies to re-use the respective bodies' documents. The questionnaire
47 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:107:0038:0041:EN:PDF
48 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:330:0039:0042:EN:PDF
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and interviews implemented by the Agency for Public Management show that several changes
have taken place over the past year in terms of phasing out exclusive rights, if any. The survey
shows, moreover, that there are unclear points regarding how the notion of 'exclusive ri ghts' (or
'arrangements') should be defined. Based on the responses to the Agency's questionnaire survey,
we find wide-ranging perceptions of differences between licensing agreements, on the one hand,
and exclusive rights on the other. According to the Agency, there is substantial uncertainty
regarding how the term 'exclusive right' should be interpreted. The Swedish Agency for Public
Management therefore draws the conclusion that it is imperative to define the terms 'licensing
agreement' and 'exclusive right', and also to assist both central and local public sector bodies in
their work of developing non-discriminatory licensing agreements.49
It should be noted that in March 2012, the Swedish Competition Authority closed an investigation
with regard to a possible abuse of a dominant position by the Swedish Patent and Registration
Office (SPRO) regarding its Trademark register. The Swedish Patent and Registration Office
(SPRO) started to offer from 2010 free access to the Trademark register to the downstream end-
user market. Customers on the upstream wholesale market were offered more detailed data in
different formats (so-called “register lifted data”) for a one-time fee and then a yearly fee. Before
2010, SPRO had offered access to the database to end-users for a fee. The SPRO motivated the
decision to eliminate the fee with that free access was within the public task assigned to it by the
government. The complaining (incumbent) re-user alleged that it was likely it will be squeezed out
of the market by SPRO offering a competing product for free.50. This case shows that the
underlying economic rationale for the PSI Directive can actually run counter the stated objective
of fostering an Open Government.
Does Openness mean "accessible"?
We submit that transparency should be measured having regard to not only the average person
"without impairments", so to speak, but also with those who are for instance visually or hearing
impaired. In other words, transparency also should take "accessibility" into account.
For web content a standard has been developed by W3C, which is the Web Content Accessibility
Guidelines (WCAG)51.
European Commission (EC) Mandate M 376 required the three main European standardisation
bodies CEN, CENELEC and ETSI to harmonise and facilitate the public procurement of
accessible information and communication technologies (ICT) products and services within
Europe. 52
Both of the mentioned standardisation rules have been mandated by some Member States53
49 Statskontoret, A survey of exclusive rights or arrangements (2010:21), available at http://www.statskontoret.se/in-
english/publications/2010/a-survey-of-exclusive-rights-or-arrangements/.
50 Björn Lundqvist and Ylva Forsberg (Stockholm University), Marc de Vries (Citadel Consulting) and Mariateresa
Maggiolino (Bocconi), LAPSI 2.0 – competition law issues position paper, available at http://www.lapsi-
project.eu/sites/lapsi-project.eu/files/LAPSIcompetitionartikelDraftII-1.pdf; Elisabeth Eklund and Oscar Jansson,
Lower fees for re-use of public sector information – the PSI Directive and cases from the Swedish Competition
Authority, available at http://www.worldservicesgroup.com/publications.asp?action=article&artid=4792; see also Björn
Lundqvist, Marc de Vries, Emma Linklater och Liisa Rajala Malmgren, Business Activity and Exclusive Right in the
Swedish PSI Act, Swedish Competition Authority, Uppdragsforskningsrapport 2011:2, available at
http://www.konkurrensverket.se/upload/Filer/Trycksaker/Rapporter/uppdragsforskning/forsk_rap_2011-2.pdf.
51 Web Content Accessibility Guidelines (WCAG)". Retrieved 16 October 2014.
52 "European Accessibility Requirements for Public Procurement of Products and Services in the ICT Domain (European
Commission Standardization Mandate M 376, Phase 2)". Retrieved 16 October 2014.
53 Some information on the adoption of accessibility standards, a recent book is Buie, Elizabeth; Murray, Diane (2012).
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The Commission reports that since January 2010, all new EUROPA websites have been created in
compliance with WCAG 2.0, level AA success criteria.54 and this includes the website of the
European Parliament. 55
However, "accessibility" seems to extend to much more than just web view, as the flow of
information is certainly passing through means that go beyond the web and the Internet in general.
There is, therefore, a wider need to ensure accessibility by allowing that the IT systems be
interoperable and technology neutral, so that accessibility is ensured not only b y providing
accessible content, but by allowing any technology provider to ensure that they can build
accessible tools using the content in whichever form it can be presented, and ‒ as much as possible
‒ to make tools to tackle specifi c problems for people with different impairments for whom the
simple accessibility criteria are insufficient.
Does "accessible" mean (also) Free and Open?
If "transparency" here means "directly open, transparent and accessible to all the constituents" and
not just to those directly involved in the Parliamentary works and interest-bearer, as a complement
of democracy, openness shall be in principle brought to the farthest and least reachable corner of
the Union where constituents have a chance of looking into how a particular matter has been dealt
with by the Parliament and components thereof. An example of why openness is a requirement for
transparency via accessibility has been provided in the previous chapter.
In an interconnected world this goal can be efficiently achieved by means of technology, in
particular through telecommunication technology. This seems a sufficiently self-evident and
commonly accepted concept that does not deserve further discussion and evidence.
Telecommunication technology cannot exist without standards. This is also quite easily understood
and common ground. 56
Therefore "openness" shall mean that the external communi cation channels, of all sort, must use
standards, which (or the many possible) standard(s) remaining yet to be assessed.
All signs point in the direction that standards involved in a public institution shall be "open" 57
Quite in the same direction goes the seminal work of De Nardis and Tam 58 from which a citation
is indeed appropriate:
With regard to standards that directly affect conditions relevant to democracy, the most
prominent examples consist of standards that affect citizens’ access to information
Usability in Government Systems: User Experience Design for Citizens and Public Servants. Elsevier. ISBN 978-0-12-
391063-9. Retrieved 16 October 2014.
54 "Web Accessibility". European Commission. Retrieved 16 October 2014.
55 "Accessibility of the Europarl website". European Parliament. Retrieved 16 October 2014.
56 "Standards are critical to the interoperability of ICTs and whether we exchange voice, video or data messages,
standards enable global communications by ensuring that countries’ ICT networks and devices are speaking the same
language." From "ITU in Brief". Retrieved 25 July 2014.
57 For a very large collection of reference in this regard Opengovstandards.org is probably the best source. Quoting from
it "Transparency means that information about the activities of public bodies is created and is available to the public,
with limited exceptions, in a timely manner, in open data formats and without restrictions on reuse. Transparency
mechanisms must include the disclosure of information in response to requests from the public and proactive
publication by public bodies. Key information about private bodies should be available either directly or via public
bodies."
58 DeNardis, Dr. Laura and Tam, Eric, Open Documents and Democracy: A Political Basis for Open Document Standards
(November 1, 2007). Available at SSRN: http://ssrn.com/abstract=1028073 or http://dx.doi.org/10.2139/ssrn.1028073
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concerning government decisions as well as standards concerning government records.
The importance of accountability renders openness of implementation and use similarly
important in this context.
[...]
Consequently, the standards that affect such conditions must be continuously free of
barriers to the widespread use of the relevant access technology. Democratic values are
inconsistent with differential costs in the form of royalty fees or interoperability barriers
that potentially result in unequal citizen access to such information.
It is also quite self-evident that transmitting information to an outlet that cannot be used by the
intended recipient equals to opaqu eness, as openness must be a characteristic of the entire space
between the object and the observer. As said before, while having total openness – which means
totally unencumbered space – is more a reference than a realistic goal, getting as close as
practically possible to it is the yardstick of compliance with the rule in hand.59 60
It is reasonable that the means and infrastructure to be used to achieve the goal of openness are a
matter of technical decisions in a scenario of non-unlimited resources. It also seems reasonable
that once a high level decision on which channel is more conveniently adopted, at an early stage of
the decisional process, and throughout the life cycle of the adopted solutions, the decision makers
shall measure how easily accessible the channel is.
As soon as the radio broadcasting was shown to be a practical way to spread information,
institutions found it convenient to use the radio channel to increase the outreach of their messages.
When television came along, and become a widespread medium, that channel was also used, both
directly and through facilitating reporting by the press. Because today Internet is one of the most
used source of information, all institutions use the various communication avenues that Internet
allows to increase, at exponential rates, access and feedback, including the European Parliament.
Internet is a showcase of open standards, because as such Internet is nothing more than a collection
of protocols one stacked upon the other. 61 so t hat information and services are exchanged between
and through an arbitrary set of networks through common interfaces. It is hard to think of
something more accessible and widely available and efficient. No doubt any openness must
involve Internet distribution.
But while it is true that Internet means a stack of protocols and interfaces, due to its anarchic and
agnostic nature, it is possible that some of t he chosen protocols are less easily available and
widespread. In theory, parties c an agree upon "proprietary protocols" and still have a way to
communicate. Privacy-aware protocols, like those enabling VPNs are just there for that, creating a
privileged channel that excludes all others not part of the conversation. Encryption is a way to
transmit a confidential message over a public channel, introducing a secret and private element
that allows only those privy to something to make sense of the message.62 On the other end of the
spectrum are those protocols, widespread, available and unencumbered standards that any entity is
able to intercept and interpret to the fullest without any kind of restriction, where nothing, being it
a technical, economic or legal element, hindering the access to the message. This is one possible
59 Updegrove, Andrew. "With Access and Information for All". Consortium Info. Retrieved 25 July 2014.
60 Updegrove, Andrew. "How Open Must an Open Government Platform be?". Retrieved 25 July 2014.
61 For an historical perspective of how Internet developed and was defined, see Barry M. Leiner, Vinton G. Cerf, David
D. Clark, Robert E. Kahn, Leonard Kleinrock, Daniel C. Lynch, Jon Postel, Larry G. Roberts, Stephen Wolff (2003). A
Brief History of Internet. Retrieved 25 July 2014
62 A good list of sources on cryptography and the problem it solves can be found at "Cryptography". Retrieved 9
December 2014.
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way of defining "open standards". Which is the subject of the next section.
Free and open in technology
In the l ast paragraph of the previous section we have concluded that free and open is a proxy for
"transparency". 63 Here we will des cribe what "Free and Open" m ean from a technology point of
view with reference to commonly accepted, yet controversial at times, sources.
Free and Open Standards
There is no legal and binding definition on what an Open Standard is. All the attempts made so far
within the EU legislature and policy documents have faced strong debate and criticism from either
side of the spectrum ranging from those who claim that "Open" applies to all standards that are
available to ever y concerned entity, to those who claim that "Open" needs a far stricter definition
and the list of requirements for a standard to be called "open" extend beyond the nature of a
technical document of the standard t o encompass the legal restrictions to its implementations (first
and foremost patents) and the independence from a single implementation, especially coming from
the main proponent of the standard.
The debate around the European Interoperability Framework in its two incarnations (v.1 and v.2) is
particularly illustrative of this dualism.
The European Interoperability Framework V.1
The European Interoperability Framework was conceived in 2003 and defined as "[an] overarching
set of policies, standards and guidelines which describe the way in which organisations have
agreed, or should agree, to do business with each other." 64 In essence, it is an effort put in place to
have one reference for public administ rations as well as private entities within Europe to
seamlessly share services and data with each other, by means of agreed practices and standards, as
an action from eEurope 2005 Action Plan.
One of the tasks of the project was indeed to find some common ground as to what "standard"
means and what an "open standard" also means:
To attain interoperability in the context of pan-European eGovernment services, guidance
needs to focus on open standards 17. 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.
63 See also Lathrop, Daniel; Ruma, Laurel (2010). Open government : [collaboration, transparency, and participation in
practice] (1st ed. ed.). O'Reilly. ISBN 978-0-596-80435-0. Retrieved 14 October 2014.
64 "EIF - European Interoperability Framework for pan-European eGovernment services". Retrieved 7 August 2014.
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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.65
Note that the recommendation did not prescribe the use of only open standards, but only advised to
"focus" on open standards. There was also no ethical or ideological implication in the
recommendation, which came from an objective and functional analysis.
To our knowledge, that was the first attempt to define open standards in an official, albeit non
legislative, document from the European Union. The document was officially adopted in 2004.
The European Interoperability Framework V.2
In 2006, the European Commission has started the revision of the European Interoperability
Framework.66
The effort was completed on December 2010.67
Reportedly due to intense lobbying by industry representatives,68 69 notably in the new document
there is no reference to standards at all, let alone to open standards, but more vaguely to "open
specifications". 70
The relevant language starts with "If the openness principle is applied in full" [emphasis added],
therefore it is not even a recommendation that of applying openness in full, but only a trajectory is
envisaged and made an hypothesis. Consequently Recommendation 22 of the EIFv2 states:
Recommendation 22. When establishing European public services, public administrations
should prefer open specifications, taking due account of the coverage of functional
needs, maturity and market support. [emphasis added]
The very definition of open specification in the EIFv2 is far more vague than the one found in the
EIFv1:
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.
"FRAND" is an acronym of "Free, Reasonable And Non Discriminatory" conditions, and is a term
65 European Interoperability Framework For Pan-European eGovernment Services. p. 9. ISBN 92-894-8389-X.
Retrieved 7 August 2014.
66 "Revision of the EIF and AG". Retrieved 7 August 2014.
67 "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". Retrieved 7 August 2014.
68 "European Commission Betrays Open Standards". ComputerWorld UK - Blog. Retrieved 7 August 2014.
69 "European Interoperability Framework supports openness". Opensource.com. Retrieved 7 August 2014.
70 EIFv2 , page 26
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of the trade in the standardisation world, and beyond. However, it is not clear what it really means
71, as for instance it can be argued that imposing a per copy royalty is discriminatory against Free
Software or software with (other) strong "copyleft" licensing conditions. Therefore it is open to
question whether FRAND conditions that do not allow "implementation in both proprietary and
open source software" are indeed FRAND as per the very definition of open specifications.
This is not the place to resolve the issue, but it is indicative of how there is a tension between those
who oppose extending the definition of Open St andards to something that is not as open as it can
be (mainly, some of the biggest patent holders, yet not all of them), and those who advocate a
stricter definition to include only something that is really open to be adopted, without the need to
take affirmative steps to obtain a license, even from a patent pool.72 73
The UK definition
Whether it is advisable or not to adopt a firm stance on Royalty Free standard can be debated at
length. However because there are policies and rules that take that approach, means that at least it
is possible to come to a stricter definition of Open Standards.
One clear Royalty Free stance with reall y far reaching requirements case is the one adopted by the
UK Government.74
12. Open standard - definition
Open standards for software interoperability, data and document formats, which exhibit
all of the following criteria, are considered consistent with this policy:
Collaboration - the standard is maintained through a collaborative decision-making
process that is consensus based and independent of any individual supplier. Involvement
in the development and maintenance of the standard is accessible to all interested parties.
Transparency - the decision-making process is transparent and a publicly accessible
review by subject matter experts is part of the process.
Due process - the standard is adopted by a specification or standardisation organisation,
or a forum or consortium with a feedback and ratification process to ensure quality. (The
European Regulation enabling specification of fora or consortia standards will enter into
force 20 days after its publication in the EU Official Journal and will apply directly in all
EU member states from 1 January 2013.)
Fair access - the standard is published, thoroughly documented and publicly available at
zero or low cost. Zero cost is preferred but this should be considered on a case by case
basis as part of the selection process. Cost should not be prohibitive or likely to cause a
barrier to a level playing field.
Market support - other than in the context of creating innovative solutions, the standard
is mature, supported by the market and demonstrates platform, application and vendor
71 Most telling the EU-commissioned study for the European Commission - Directorate-General for Enterprise and
Industry, cfr pag. 130.
72 For a dissertation of the topic in general, please see Dolmans, Maurits; Piana, Carlo (2010). "A Tale of Two Tragedies –
A plea for open standards, and some comments on the RAND report". International Free and Open Source Software
Law Review 2 (2): 115–138. doi:10.5033/ifosslr.v2i2.46. Retrieved 7 August 2014.
73 Also with useful analyses on openness of standards a more dated article: Krechmer, Ken (7 February 2005). "Open
Standards Requirements". The International Journal of IT Standards and Standardization Research 4 (1). Retrieved 7
August 2014.
74 UK Cabinet. "Open Standards principles". Retrieved 11 November 2014.
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independence.
Rights - rights essential to implementation of the standard, and for interfacing with other
implementations which have adopted that same standard, are licensed on a royalty free
basis that is compatible with both open source (see a list of open source licences
approved by the Open Source Initiative via their License Review Process) and proprietary
licensed solutions. These rights should be irrevocable unless there is a breach of licence
conditions.
The Indian definition (an example of strictest approach)
Another very strict definition is the one for India's Government 75
4.1 Mandatory Characteristics An Identified Standard will qualify as an “Open
Standard”, if it meets the following criteria:
4.1.1 Specification document of the Identified Standard shall be available with or without
a nominal fee.
4.1.2 The Patent claims necessary to implement the Identified Standard shall be made
available on a Royalty-Free basis for the life time of the Standard.
4.1.3 Identified Standard shall be adopted and maintained by a not-for-profit
organization, wherein all stakeholders can opt to participate in a transparent,
collaborative and consensual manner.
4.1.4 Identified Standard shall be recursively open as far as possible.
4.1.5 Identified Standard shall have technology-neutral specification.
4.1.6 Identified Standard shall be capable of localization support, where applicable, for
all Indian official Languages for all applicable domains.
Many more definitions
These are just samples to show how strong the debate on Open Standards is and what the
centerpoint of the discussion is: patents, or patent holders trying to extract royalty revenues for any
time a standard is used; and claiming that a patent license, with attached conditions for use, should
be agreed upon, even though on a "FRAND" basis. As of August 2014, Wikipedia counted no less
than 20 different definitions, and undoubtedly many more exist. 76
The RFCs
"RFCs" (shorthand for "Request For Comments") are specifications which do not qualify as de
iure standards (standards adopted by internationally recognised standard setting bodies after a
formal process"), but nonetheless are respected and complied with as if they were formal
standards. RFCs which is one of the w ays that many of the most used Internet protocols have born
and evolve.
RFCs are akin to formal standards, because an authoritative and documented source of normative
and explanatory text exists. The y have been adopted since the times of the ARPANET project
("Advanced Research Projects Agency Network " the initial network from which Internet
75 Government of India. "Policy on Open Standards for e-Governance". Retrieved 25 July 2014.
76 "Open Standard". Wikipedia. Retrieved 7 August 2014.
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originated) 77 and evolved over the times. RFCs are now a body of standards collected and
organised by the IETF (Internet En gineering Task Force)78 and by the less famous Internet
Society79.
They should not be underestimated, as they are at the foundation of some of the most important
and widely used protocols, such as the protocols that make the Internet email system 80
IETF's RFCs are generally considered Open Standards, and are commonly understood as "Royalty
Free" Open Standards, although the "IPR policies" (the rules according to which technologies can
be introduced into the RFCs depending on the "Intellectual Property Rights" – mostly patents
rights – are claimed by the contributing party) allow for royalty-bearing licensing of the included
technologies. 81
Free and Open Source Software (FOSS)
Definitions
There are two separate definitions on what is Free and what is Open Source Software. 82
The Free Software Definition (by the Free Software Foundation) 83
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).
The freedom to distribute copies of your modified versions to others (freedom 3). By
doing this you can give the whole community a chance to benefit from your changes.
Access to the source code is a precondition for this.
The Open Source Definition (by the Open Source Initiative)
This is a slightly more verbose definition (only headlines are provided, for brevity):84
1. Free Redistribution
2. Source Code
77 "Stephen D. Crocker, ''How the Internet Got Its Rules'', The New York Times, 6 April 2009". Nytimes.com. April 7,
2009. Retrieved 2014-07-25.
78 IETF (Internet Engineering Task Force) http://ietf.org/
79 Internet Society http://www.internetsociety.org/
80 e.g., the IMAP Protocols, see among them "IMAP protcol, RFC1064". Retrieved 25 July 2014.
81 See IETF RFC 3979
82 For an historical and general overview of Free and Open Source Software we refer to a briefing paper prepared for the
Juri Commitee by Carlo Piana, which covers much of the background of Free Software Piana, Carlo. "A discussion of
the different software licensing regimes". WORKSHOP ON LEGAL ASPECTS OF FREE AND OPEN SOURCE
SOFTWARE: 30–49. Retrieved 7 August 2014.
83 "What is free software - The Free Software Definition". Retrieved 7 August 2014.
84 Full text at "The Open Source Definition". OSI. Retrieved 7 August 2014.
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3. Derived Works
4. Integrity of The Author's Source Code
5. No Discrimination Against Persons or Groups
6. No Discrimination Against Fields of Endeavor
7. Distribution of License
8. License Must Not Be Specific to a Product
9. License Must Not Restrict Other Software
10. License Must Be Technology-Neutral
Although the two definitions are different, it is difficult – nay impossible ‒ to find a subset of
licenses t hat qualif y under one definition and are outside the other definition, therefore, for our
scopes, we will treat Free Software and Open Source Software (i.e., software licensed under either
definition) as synonyms.
Is that about it?
There is no serious contention as to whether Free Software is the golden standard for openness in
software.
Yet, if openness is a continuum, there are lesser forms of openness also in the software making.
For instance, claims can exist that proprietary platforms that implement standard interfaces are
"open", and indeed some form of openness exists also in ultra-proprietary software like Microsoft
Windows. 85 Interoperability is a form of openness, standards are a form of openness, also in
software.
However, when it comes to software, the four freedoms granted by Free Software are not an easy
yardstick with which to be measured. Full access to code, especially when it is enforceable through
the "copyleft" conditions, has many advantages that go beyond the much touted "bazaar model" of
development. 86 Access to code and the legal permissions that the license provide mean anyone
with sufficient skills can take over the program and "fork " it (forking means that someone parts
from the current development and starts a new independent development branch). In other words,
while full access to code does not mean that backdoors and insecurities cannot be inserted, they are
quite easily discovered and easily fixed. But in essence, full access to code and the legal
permissions that the license convey means that there is an assurance that the softw are development
can proceed even in the event that for any reason relationships with the original developer become
problematic.
The most important point is that in a Free Software environment, where the user benefits from the
four freedoms and the legal permissions that this brings to them, from an economic point of view a
new game (as in the Gaming Theory) is created, compared to what happens in a proprietary
85 Or at least it has been claimed. See for instance Jansen, Slinger; Cusumano, Michael A.; Brinkkemper, Sjaak (2013).
Software Ecosystems: Analyzing and Managing Business Networks in the Software Industry. Edward Elgar Publishing.
p. 163.
86 Raymond, Eric S. "The Cathedral and the Bazaar". Retrieved 11 August 2014
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environment. This game creates a reassurance against lock-in, because most of the techniques that
have been so far used to force clients to stay with one vendor have little meaning where an exact
replica of the entire set of applications can be obtained from other sources, and further
development of them can be taken over from any arbitrary point. Let us discuss it in more depth.
Lock in
So far we have dealt with Free and Open from the perspective of having an unimpaired access to
information and data. In other words, to have communication channels that allow content to flow
without impairment from one point of the channel to the other. We have seen that certain decisions
should be taken to maximize the chances of this happening.
However, as with any decision, decision-makers are not always at liberty to choose wh at 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".
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.
Locked-in solutions might not allow achievement of the goal of transparency, because budgetary
and time constraints work against it.
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,87 within Action 23 of the Digital
Agenda. 88 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.
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. 89
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
87 "European Commission renews controversial Microsoft contract". Retrieved 9 December 2014.
88 "Action 23: Provide guidance on ICT standardisation and public procurement". Retrieved 8 August 2014.
89 "Open Standards". Retrieved 8 August 2014.
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A Communication titled "Against lock-in: building open ICT systems by making better
use of standards in public" 90
A staff working document "Guide for the procurement of standards-based ICT —
Elements of Good Practice" 91
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 t he use of open standards for the outward channel, but
transparency leans heavily towards t he 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 f rom 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. 92
The availabilit y 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 93.
Free Softwar e 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.
90 "Against lock-in: building open ICT systems by making better use of standards in public". Retrieved 8 August 2014.
91 "Guide for the procurement of standards-based ICT — Elements of Good Practice". Retrieved 8 August 2014.
92 A useful discussion on what the ability to fork means in terms of relieving competition concerns can be found in
"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)". Retrieved 10 November
2014. , Section 4.4.3 (pag. 118 onwards).
93 The most striking example is probably the Microsoft case The most striking example is probably the Microsoft case
"Commission Decision of 24.03.2004 relating to a proceeding under Article 82 of the EC Treaty (Case COMP/C-
3/37.792 Microsoft)". Retrieved 10 November 2014.
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The European Parliament should use IT solutions guaranteed to be independent from IT
vendors. Instead of making IT decision based on cost, it should prefer technologies that
allow others to work with it.
Free and Open data and content
If transparency means being able to receive information, in a legal environment that means "data"
and "content". Protection of data and content under European law occurs under three main
headlines: Secrecy (or confidentiality) Copyright (or droit d'auteur), which may or may not
include "moral rights" Data base (or sui generis) protection
We can safely exclude "secrecy" from our analysis. Except for the matters that, in case, must be
kept secret for any reasons, the transparency rule is the opposite of the secrecy rule.
Copyright and data base protection require more in depth analysis.
Copyright
Copyright is uniformly regulated ac ross Europe, under the general umbrella of the Berne
Convention, by the implementation at member states' level the "Copyright Directive" 94. Fully
analysing the working of copyright is beyond the scope of the research, as it is discussing the
slight differences in the single Member States implementations, pa rticularly in terms of exceptions
to copyright.
Law texts are generally recognised as not bearing copyright. However, all preparatory works,
studies, briefing papers, analyses and other documents can have a different status according to
whom has prepared them and under which arrangement with the Parliament.
Under the default copyright regime, the copyright holder has a number of rights to prevent others
from performing certain actions, including copying, transforming, translating the copyrighted
content. This right arises with the making of the copyrightable subject without the need of any
affirmative step or claim. Silence is sufficient.
Under such regime, irrespectively of the actual copyright status under which certain material is
being served onto the public, even uncertainty as to the copyright status of certain works can have
a chilling effect on the transparency and prevent it from achieving its fullest implementation.
One of the enablements of the Internet (and open standards) is the ability to re-use and transform
content to produce new service that provide the same content in innumerable new ways. That
could include a "syndication" of content, mash-ups, translations 95. Anywhere there is unmet
demand for services containing the same information, there can be a service from an unexpected
source. Sometimes this service is brought by private, amateur service providers, who have no
resources or knowledge to fully inspect all sources to verify if they are freel y re-usable in
automatically aggregated content. Some do it nonetheless, other might be discouraged from re-
94 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information society
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32001L0029:EN:HTML
95 "A mash-up, in web development, is a web page, or web application, that uses content from more than one source to
create a single new service displayed in a single graphical interface." See http://en.wikipedia.org/wiki/Mashup_
%28web_application_hybrid%29. Similarly, syndication means aggregation of content from various sources. See for
reference http://en.wikipedia.org/wiki/Web_syndication
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sharing t he (modified) content on copyright grounds. This is not unexpected in an environment
where prohibition is the rule and free use is an exception.
It is therefore important, in the view of the authors, that an y time when the rules would allow free
re-use of the content, including translation, transformation, aggregation, it is explicitly stated in a
clear and irrevocable way. Absent a clear and final rule that puts the content in "public domain",
there should be a default "licensing statement" to clarify the legal status of it. We submit that
removing any uncertainties is a step in the right direction. That is, ensuring that all information
subject to transparency be Open Content.
Legal instruments exist to this effect. The most known set of these instruments with regard to
creative content is the Creative Commons 96 one. In particular, the Creative Commons Attribution -
only license and the Creative Commons CC-zero (or CC-0) seem to be the most appropriate for
implementing an affirmative open content strategy where the copyright status of the work so
permits. In order for it to be possible, all material prepared for and upon instruction of the
Parliament needs to be licensed by their authors under the same or compatible licenses.
Because this is an analysis of open content only from the point of view of transparency, we defer
to the many studies on the open content in the public sector for a more detailed discussion.
(Open) Data
The same reasoning is applicable to the data. The ability to drill into data to distil information is
generally understood to be a key to transparency. 97 In order to perform actions on data it is
necessary that not only data are made available, i.e., disclosed, but that all the actions necessary to
perform the analysis and meta-analysis are permitted. This might not alwa ys be the case or
uncertainty could exist on it.
Datasets are protected in Europe by the Database Directive, as implemented by member states. 98
The Database Directive provides a protection of database on which the maker has put a significant
investment in the obtaining, verification or presentation of the contents. This protection is a
different kind from copyright or patent protection, and therefore is called sui generis (of its own
kind) and, like the copyright, is granted without any affirmative action, including issuing an
express claim, by the maker. Therefore, in default of an express license or waiver, the principle is
that the extraction, duplication and dissemination of the dataset (or of a substantial part thereof) is
reserved to the maker.
Therefore, in order for datasets to be re-used, and thus to enhance their availability, id est,
transparency, data should be treated as long as possible as "Open Data". 99 Open data in the public
sector is such a common ground that many states have stated in full the principle that data by
default should be open. 100 Among them the G8 countries have adopted a clear document favouring
96 Creative Commons http://creativecommons.org/
97 "Democracy and open data: are the two linked?". Retrieved 14 October 2014.
98 "Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of
databases". Retrieved 8 August 2014.
99 An open data definition, modelled upon the Open Source Definition can be found at "Open Definition".
100 See for instance US's "Executive Order -- Making Open and Machine Readable the New Default for Government
Information". Retrieved 8 August 2014.
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the use of Open Data. 101 102 103 Across Europe, a drive towards open data is given also by the PS I
Directive, which prescribes that certain data held and produced by the Public Administration at
large be made available for industry perusal 104.
The Europe an Commission, not bound to the P SI Directive, recognisin g the importance that all
data produced by it be available to the general public as much as possible in an open and
unencumbered fashion, and possibly also in a machine-readable format, has adopted a Decision on
re-use of Commission documents (2011/833/EU)105, adopting an open by default rule (Art. 9). As
for the formats, Art. 8 of said Decision provides:
Article 8 Formats for documents available for reuse
1. Documents shall be made available in any existing format or language version, in
machine-readable format where possible and appropriate.
2. This shall not imply an obligation to create, adapt or update documents in order to
comply with the application, nor to provide extracts from documents where it would
involve disproportionate effort, going beyond a simple operation.
3. This Decision does not create any obligation for the Commission to translate the
requested documents into any other official language versions than those already
available at the moment of the application.
4. The Commission or the Publications Office may not be required to continue the
production of certain types of documents or to preserve them in a given format with a
view to the reuse of such documents by a natural or legal person.
While fully analysing the licensing of data goes beyond the scope of this study, and while the
discussion on open standards also covers the way (or format) in which data are made available for
non-intermediated consumption, we suggest that not only for transparency purpose, but in order to
generally remove unnecessary confusion, that instead of licensing data, a waiver on database right
is adopted as default legal release tool. 106
Practical applications
Here we will use the findings in the previous sections to analyse what in practice the principles
mean in different areas of the Parliament's IT systems.
Email system
Despite the emergence of social netwo rks and other public, semipublic and semiprivate
communications tools, emails remain b y and large a ubiquitous way of communicating, both
individually (one-to-one) and on a larger scale (one-to-many, many-to-many) fo r example via
discussion lists.
101 "Open Data Charter". Retrieved 8 August 2014.
102 A useful resource for information on open data in a governmental environment can be found at "Citizens, democratic
accountability and governance". Open Knowledge. Retrieved 8 August 2014
103 "Open Data: unleashing the potential". Gov.UK. Retrieved 10 November 2014.
104 "European legislation on reuse of public sector information".
105 "Rules for the re-use of Commission information". Retrieved 14 October 2014.
106 One of the authors has explained this finding in "FreeGIS.net Data Licence 1.0". [ITA], but see also Morando,
Federico. "http://leo.cineca.it/index.php/jlis/article/view/5461". Retrieved 8 August 2014.
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All the Members of the European Parliament and their staff are given a personal mailbox that they
can use for their institutional activities. The addresses of the MEP are public and the publ ic uses
them to reach the MEPs, e.g., for campaigning purposes.
Meanwhile, the email system is threatened by all sort of attacks, because of its very nature of being
decentralised, lightweight and unverified. These attacks range from simple "spam" (unsolicited
emails) to scams (email messages trying to illegally induce the recipient to perform certain
activities), to conveying malicious code. In addition, email is often used to illegally collect
information pertaining to the recipient (from simple profiling up to "phishing", an attack that
strives to collect sufficient i nformation to actually steal money or overcome protections), if not
compromising the secrecy of the communication by intercepting the flow of email exchange (e.g,
through "man-in-the-middle" attacks).
Basic introduction to the standard infrastructure
The email system, which is basically made of two server components (one for sending the
outbound emails, one for receiving, storing and forwarding to the recipient) and one client
component.
The standard server components are the Simple Mail Transfer Protocol (SMTP)107 for
relaying and sending the messages out;
and the Internet Message Access Protocol (IMAP)108 and the Post Office Protocol
(POP)109 for accepting, storing and making available the inbound message.
The client component can be a local application, installed on a computer, or a web application ‒
often referred to as "webmail" ‒ which offers retrieving, reading, composing and sending services
that replicate those of the local application, without the need to locally download the message.
Some providers have developed proprietary extensions to these protocols and services, probably
the most popular is the MAPI protocol that links together the client Microsoft Outlook (and other
clients that implement the protocol) with Microsoft Exchange Server 110 , but also Google's Gmail
and Apple's Mail use proprietary protocols, especially for mobile consumption of the email
services.
If for the outside world, using those proprietary client/server protocols makes very little difference,
as the email is sent and received through standard protocols (although compliance with content
and transport standards can vary), it is i mportant that their adoption does not impair t he ability of
clients that do not implement them to access the email without impairment.
A standard secure layer from client to server
It is important that the email can only be sent and received by authenticated users. In other words,
email shall receive a high degree of protection.
IMAP requires userid and password to access the email, and offers secure connection between the
107 http://tools.ietf.org/html/rfc5321
108 http://tools.ietf.org/html/rfc3501
109 http://tools.ietf.org/html/rfc1939
110 "Exchange Server Protocols". Retrieved 7 October 2014.
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client and the server so that the flow of communication cannot be intercepted between the server
and the client (most commonly with SSL/TSL)111
Similarly SMTP allows both user authentication and encryption of the flow, although many
publicly available SMTP servers do not require either.
On privacy concerns, it is highly recommendable that both are in use, as they create a readily
available layer of security at virtually no expense. According to art. 22.1 of Regulation (EC) No
45/2001, the data controller (as well as a third party processor or service provider) shall comply
with the following rule:
Having regard to the state of the art and the cost of their implementation, the controller
shall implement appropriate technical and organisational measures to ensure a level of
security appropriate to the risks represented by the processing and the nature of the
personal data to be protected.
As TLS is a publicly available standard, using it is highly recommendable.112
TLS only protects the data stream from the originating point (the client for outbound and SMTP
for incoming email) to the first endpoint (the SMTP server for outbound and the client for
incoming email). Once the email has left the internal system, it is bound to be transmitted in clear
over the Internet. In order to secure the content from the sender to the recipient, the only way is
full encryption of the message, as the message itself will be relayed through an arbitrary number of
servers as plain text.
The two most used ways of (directly)113 encr ypting the messages are S/MIME114 and OpenPGP115,
neither of which is an approved standard, although they are implemented directly or through third
parties in many email clients, so they satisf y many of the requirements for being open standards
(fully public and available standard text, independently managed, multiple independent
implementations, no known IPR). Although the adoption of email encryption seems to be very
limited, the case for allowing encr ypted emails to flow through the servers is clear also from a
transparency point of view (no pun intended).
Encrypted email cannot be scanned by security systems and therefore they are likely to be
intercepted by them. This would be a false positive, though, since it would be a legitimate email. In
order to preserve the viability of an encrypted channel of communication, this kind of messages
should be whitelisted, at least at the user request, and in any case any such blocked message should
be notified to the user, put into a quarantine and the user should be enabled to open it.
111 http://tools.ietf.org/html/rfc5246
112 This is very basic advice, securing an email system is well beyond the scope of this work and the expertise of the
authors. Many guidelines can be found online, supporting this finding and more, like
http://www.cisco.com/web/about/security/intelligence/bpiron.html or https://otalliance.org/best-practices/transport-
layered-security-tls-email
113 Obviously an email message can have arbitrary encoded files, including encrypted ones, here we are only dealing with
encrypted messages that are recognised directly by the client application without the need to open them outside, and
with the ability to have a "seamless" email discussion
114 http://tools.ietf.org/html/rfc5751
115 http://tools.ietf.org/html/rfc4880
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Mailing lists
Emails are complementary to the use of mailing lists, which are particularly useful discussion fora
when discussion occu rs by threading them via an email discussion. To do so certain rules in both
RFC5321 (section 3.9) and RFC2369 116 should be implemented.
From a discussion in a Freedom Of Information access request 117 it looks like any such request
coming from an external mailing list is outright refused by the European Parliament's systems, on
the grounds that the address is considered not genuine ("spoofed"). However, a message sent by a
member of a mailing list to the mailing list and relayed by the mailing list to its subscribers
(including the sender) needs to contain the from: and reply-to: address of the originating email
message must not be modified, and obviously this would cause the address of the incoming email
being considered not genuine (again, "spoofed") according to the criterion that all messages from a
European Parliament address must come from a European Parliament SMTP server. However, this
is absolutely not mandated by the standard protocols (it is indeed normal that an address comes
from an SMTP in a domain different from the domain of the originating address) and impedes the
users of the European Parliament system to participate in external discussion mailing lists.
This seems in stark contradiction with the principle of transparency.
Publishing and archiving documents
Publishing information in the form of documents can be achieved through numerous ways, the
most common of which is through the World Wide Web and its HTML/XML standards. These
standards are mainly meant for files being uploaded to or generated by content management
services and be read via a browser by the general public.
However, people rarely work with web pages and web pages are most of the time not just
documents. Individuals and working groups still use "standalone" documents that they share, edit,
print, archive and make available to a larger audience, and these documents are still largely bas ed
on the same model of paper documents and are made using document applications (such as
wordprocessors, spreadsheets, presentations applications). As the bulk of the documents produced
by public institutions are generated, kept and electronically exchanged in their original form, or
"printed" and exchanged as if they were on paper, many times it has been suggested that the use of
proprietary and non standard documents tilt the table in favour of the proponents of those
documents and at the same time limit the access to those document by those who do not use the
applications made by the same proponents.
The state of Massachusetts has perhaps been the first taking action to solve this situation and
mandate the use of open standards in document files made and exch anged by the public
administration.118 It will take too long to narrate the discussion that ensued. At the time of writing,
the last large government to take action in this regard has been the UK Cabinet, which has opened
a very large consultation and performed a thorough analysis of the best way to achieve
"transparency and accountability of government and its services".119 Citing from the premises of
this study:
116 http://www.ietf.org/rfc/rfc2369.txt
117 Interoperability with the EP's mail systems http://www.asktheeu.org/en/request/interoperability_with_the_eps_ma
118 "Massachusetts moves ahead sans Microsoft". Retrieved 13 October 2014.
119 "Improving the transparency and accountability of government and its services". Retrieved 13 October 2014.
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[...] in order for data to be used this way, it has to be released in a format that will allow
people to share it and combine it with other data to use it in their own applications. This
is why transparency isn't just about access to data, but also making sure that it is
released in an open, reusable format.
In terms of publishing documents, the conclusion has been: 120
PDF/A or HTML for viewing government documents Open Document Format
(ODF) [ISO/IEC IS26300] for sharing or collaborating on government documents
Surveillance and privacy
Electronic communications via Internet are exposed to mass surveillance and the privacy of those
who use it is constantly at risk.
The use of open standards goes in the direction of enabling multiple parts to interoperate and
access to the source of information. Whereas recently it has been alleged that a few subjects
(mainly governments and governmental agencies) may have achieved the ability to scan and retain
information on virtually any electronic communications -- whether through the collection of
"metadata" or actual recordings of content exchanged -- the use of open standards is a way to
minimize the chances that other subjects may also achieve a similar control.
Internet was born and has grown as a deeply decentralised ecosystem. Market forces may or may
not lead to a less decentralised situation in the future, with concentration in the hands of few. The
European Parliament, as any public institution, should be aware of the impact that its decision have
in exposin g the privac y of their citizens that interact with their services by forcing them to use
technologies which are available only through certain operators. Or worse, through services
directly in the hands of them.
Similar conclusions seem to have been taken by the European Parliament Resolution of 12 March
2014 on the US NSA surveillance programme, surveillance bodies in various Member States and
their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and
Home Affairs (2013/2188(INI)):121
91. Takes the view that the mass surveillance revelations that have initiated this crisis can
be used as an opportunity for Europe to take the initiative and build up, as a strategic
priority measure, a strong and autonomous IT key-resource capability; stresses that in
order to regain trust, such a European IT capability should be based, as much as
possible, on open standards and open-source software and if possible hardware, making
the whole supply chain from processor design to application layer transparent and
reviewable;
Conclusions
The Court of Justice has reminded us, the European citizenry, that openness contributes to
strengthening our democracy, by enabling us to scrutinise all the information which has formed the
basis for a legislative act. This means that we, the citizens of Europe, should be able to see,
evaluate and analyse all the information used in the drafting of any EU law. The possibilit y we
120 "Open document formats selected to meet user needs". Retrieved 13 October 2014.
121 http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2013/2188%28INI%29
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have to scrutinise the considerations underpinning legislative action is in fact a precondition for
the effective exercise of our democratic rights.
Going beyond the constitutional requirement of openness laid down by the Treaties, the European
Parliament has imposed upon itself a further commitment to conduct its activities with the utmost
transparency. Our study suggests that ensuring this "utmost transparency" is not only an essential
procedural requirement but actually a fundamental democratic principle which brings precise
duties.
Thus, the principle of openness should guide Parliament's choices of IT hardware and software
systems and, as technology evolves, these choices should be continuously and pro-actively
reassessed. By its own standard, Parliament should choose the systems and technologies that are
the most open and the most accessible to the public.
But beyond that, the principle also concerns possible legal restrictions on further distribution and
use of the resources made available, including independent analysis, aggregation, re-use and
redistribution of the data. Such restrictions should never undermine the basic requirements of
openness and utmost transparency. On the contrary, Parliament must use systems, technologies and
software that allow for the free-est analyses, re-uses and re-releases of its data: these are essential
activities in a modern democratic society.
We therefore conclude that it follows from the principle of openness and of "utmost transparency"
that when Parliament decides to make a given set of data or information available to the public,
this must be done through non-discriminatory, transparent and up-to-date m eans of
communication, and in open formats that support such further analyses, uses and releases.
We find that lock-in and vendor dependence are difficult to reconcile with the principle of
openness and of "utmost transparency" to which Parliament has committed itself. In our view,
Parliament should not take lowest costs as an absolute metric in its strategic choices of IT systems.
Rather, technologies that allow others to work with Parliament's own systems and data should be
privileged, even if they were to incur some extra costs.
This view is fully in line with new EU rules on public procurement that allow for the taking into
account of environmental and social considerations and innovation in the awarding of public
contracts. In our view, promoting Free Software and Open Standards throu gh proportionate and
calibrated specifications also serves the general economic interest of the EU, in the true sense of
the term.
Finally, we have shown that other public bodies in certain Member States provide measurable
benchmarks for the adoption of Free Software and Open Standards. We believe that the European
Parliament should follow those leads, and exceed them.
We conclude that the Rules of Procedure of the Europe an Parliament should whenever possible
make Free Software and Open Standards mandatory for all systems and data used for the work of
Parliament. In our view, that is the most appropriate way for the Parliament to meet its own
standard of "utmost transparency".
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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 and was first published online on 12/12/2014.
The study has been open for public review on euwiki.org from October 15 till November 15
2014.122 Online support during the review period has been provided by Jonatan Walck.123
The cover illustration of the study has been created by Siri Reiter.124
About the authors
Carlo Piana is an Italian qualified attorney based in Milano, founder of Array – a law firm
specializing in Information Technology Law. He also serves in the Editorial Committee of the Free
and Open Source Software Law Review
Ulf Öberg is Founder and Managing Partner of the law firm Öberg & Associés. He is specialised
in EU and Competition law and has extensive trial experience before the EU Courts, Swedish
courts and European Court of Human Rights.
Professor Douwe Korff is an Associate of the Oxford Martin School of the University of Oxford
and a member of the cybersecurity working group of its Global Cybersecurity Capacity Centre; a
Visiting Fellow at Yale University (in its Information Society Project); and a Fellow of the Centre
for Internet & Human Rights of the European University Viadrina in Berlin.
122 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&diff=17300&ol
did=16920
123 Jonatan Walck is a computer and computer networks specialist working with system administration and development
of internet-connected services, hardware-software integration and electronics. He is a founding member the Swedish
non-profit Juliagruppen and a long term advocate for a free and open internet.
124 Siri Reiter is a graphic designer, illustrator and artist. She graduated at Kolding School of Design and works primarily
from Orø, Denmark.
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International Free and Open Source Software Law Review Vol. 6, Issue 1
Licence and Attribution
This paper was published in the International Free and Open Source Software Law
Review, Volume 6, Issue 1 (December 2014). It originally appeared online at
http://www.ifosslr.org.
This article should be cited as follows:
Piana, Carlo; Öberg, Ulf (2014) 'Ensuring utmost transparency ‒ Free Software and
Open Standards under the Rules of Procedure of the European Parliament',
International Free and Open Source Software Law Review, 6(1), pp 11 – 50
DOI: 10.5033/ifosslr.v6i1.105
Copyright © 2014 Carlo Piana, Ulf Öberg, Dowue Korff
This article is licensed under a Creative Commons, Attribution – Share Alike 4.0
International Licence
http://creativecommons.org/licenses/by- sa / 4 .0/