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

This report is timely, and deals with an important issue in an era of widespread disillusionment with and distrust of politics and political institutions (or at least politicians). "Utmost transparency" has the potential to strengthen accountability and increase popular participation in the democratic processes. The report links this principle with the technical standards and practical steps that can be taken to ensure its full implementation – or that can effectively limit access. As the authors of this study point out, there is a difference between the somewhat legalistic right of access to information ("freedom of information") on an ad hoc, on-request basis, and general openness and transparency. The former right allows entrance to an in-principle closed building, or to closed rooms within closed buildings, on request, subject to limitations; the latter removes entire walls and allows daylight to permeate to all corners. Parliament’s duty to ensure "utmost transparency" clearly demands the latter rather than just the former.

In order to elucidate the relevant requirements, the authors provide excellent overviews of a large number of widely diverging and complex issues relevant to the topic: human rights law, EU law ranging from the Charter of Fundamental Rights to EC directives on public sector information and Commission decisions on data re-use, copyright, patents and protection of databases, principles of good governance, transparency standards relating to the environment (Aarhus), the G8 Open Data Charter and others on the mainly legal and governance standards side; the European Interoperability Framework (versions 1 and 2), open standards (as variously formally defined) and "semi-formal" RFCs, FOSS and email system requirements on the more practical, technical side. They have looked at relevant rules and practices in a range of countries including India, Sweden and the UK.

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, accountability and public participation, and trust in the Union at a time of doubt and insecurity.

London 15 November 2014.

Scope and method of analysis

The scope is therefore to verify whether, in general or in single areas, the principle of openness and the right of access to information mandates, and if so to what extent, the use of Free Software and Open Standards, or what kind of preference towards it, if any.

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 constitutional 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 exemplary, 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.

Therefore, the right to access to documents as such is only treated insofar as it provides useful information for the application of the principle of openness in practice on the debate on Free Software and Open Standards.

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:

The European Parliament has been a champion in promoting not only openness of the legislative process and the access to legislative documents, but also that the EU Courts should accept that openness constitutes a general principle of EU law, and that the right to information is as such a fundamental human right. In Netherlands v Council, the European Parliament argued as follows:

In its judgement, the Court stressed that the domestic legislation of most Member States enshrines, in a general manner, the public’s right of access to documents held by public authorities as a constitutional or legislative principle. The Court found that this trend "discloses a progressive affirmation of individuals’ right of access to documents held by public authorities" and that accordingly, the Council deemed it necessary to amend the rules governing its internal organisation, which had hitherto been based on the principle of confidentiality. The Court added that, "so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration".

According to the case law of the Court, the purpose of the Community institutions’ internal Rules of Procedure is to organise the internal functioning of its services in the interests of good administration. The essential purpose of such rules, particularly those with regard to the organisation of deliberations and the adoption of decisions, is to ensure the smooth conduct of the decision-making procedure. It follows that natural or legal persons may normally not rely on an alleged breach of such rules, as they are not intended to ensure protection for individuals.

Therefore, internal rules cannot be regarded as measures conferring on European citizens a substantive right of access to documents, to information, or to data held by the EU institutions. They are not intended to vest in European citizens a formal ”right to know” what is going on within the European institutions, which is a prerequisite in a participatory democracy, where decisions are taken "as closely as possible to the citizen”. In the absence of general rules on the right of public access to information or to data held by the EU institutions, European citizens’ ”right to know” and to participate ”as closely as possible” in the decision-making process must therefore be found elsewhere.

As a preliminary conclusion, Rule 115 does not in itself confer any rights on European citizens. Nevertheless, as compliance with internal Rules of Procedure may constitute an essential procedural requirement, and may in some circumstances have legal effects vis-à-vis third parties, their breach can give rise to an action for annulment before the EU Courts. Indeed, procedural rules laid down in Rule 115 constitutes an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU and its infringement leads to the nullity of the measure thereby vitiated.

The Principle of Openness and the Right of Access to Information: A Basis for Imposing Free Software and Open Standards ?

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.

Based on this lack of clarity in the case-law of the EU Courts, in Pitsiorlas v Council and ECB, the ECB contested the very existence in EU law of a fundamental legal principle which provides for a general right of access to its documents and to those of the EU institutions. It argued that although arguments based on such a principle have been raised on numerous occasions before the EU judicature, none of the EU Courts has considered it appropriate to examine them.

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.

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 Human Rights Committee has in turn stressed both the proactive and the reactive dimensions of the freedom of expression and freedom of information. Article 19, paragraph 2 embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source, and the date of production. As the Committee has observed in its General Comment No. 16, regarding Article 17 of the Covenant, every individual should have the right to ascertain in an intelligible form, whether, and if so, what personal data is stored in automatic data files, and for what purposes. Paragraph 3 of the General Comment No. 34 provides as follows:

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.

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.

On a comparative note, and despite the differences that may exist between national legislation and EU "legislation", or between Member State legislatures and the EU "legislature", the "legislative procedure" by which the Council and the European Parliament are bound, is conceptually very close to the national "legislative procedure", speaking from the point of view of its underlying purpose and thus the principles on which it must be based. In the end, they have in common the need to satisfy the imperative requirements of democratic legitimacy.

As the Advocate General correctly pointed out in Case C‑280/11 P Council v Access Info Europe:

’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.

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 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 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,

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:

In accordance with Directive 2003/4/EC, public authorities must in principle be required to make environmental information held by or for them available to any applicant at his request. However, the Directive permits 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 confidentiality 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.

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.

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.

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).

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 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

Article 3 of the PSI 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.

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 they 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, Council 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.

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 sector bodies to create or adapt documents or provide extracts in order to comply with that obligation where this would involve disproportionate effort, going beyond a simple operation.

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 market, 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 other 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 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 the 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

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.

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 dealing 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 order 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 publish the information without such an exclusive right.

On 18 March 2010, the Swedish Government presented its Bill (2009/10:175) on Public Administration for Democracy, 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.

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.

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 by 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 specific 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.

Therefore "openness" shall mean that the external communication channels, of all sort, must use standards, which (or the many possible) standard(s) remaining yet to be assessed.

With regard to standards that directly affect conditions relevant to democracy, the most prominent examples consist of standards that affect citizens’ access to information 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 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.

Free and open in technology

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 every 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 to 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

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. 

• •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

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. 

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.

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 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)

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

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 ways that many of the most used Internet protocols have born and evolve.

Free and Open Source Software (FOSS)

Definitions

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)

1. 1.Free Redistribution 

2. 2.Source Code 

3. 3.Derived Works 

4. 4.Integrity of The Author's Source Code 

5. 5.No Discrimination Against Persons or Groups 

6. 6.No Discrimination Against Fields of Endeavor 

7. 7.Distribution of License 

8. 8.License Must Not Be Specific to a Product 

9. 9.License Must Not Restrict Other Software 

10. 10.License Must Be Technology-Neutral 

Although the two definitions are different, it is difficult – nay impossible ‒ to find a subset of licenses that qualify 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.

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 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 what is theoretically best. Budgetary restrictions, for instance, are an obvious obstacle to this freedom, therefore choices need to be made under the condition of best allocation of non-unlimited resources. Time is another constraint. If, due to circumstances, choosing a solution requires considerable time, a quicker solution might be preferable, albeit suboptimal in other terms. Technical constraints also exist, and interact heavily with both of the previously mentioned ones.

"Technical constraints" deriving from what already is in place (technical infrastructures, previous investments in technology, archives) is what is usually called "lock-in".

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.

Therefore standards are a way to avoid lock-in. The Commission carefully avoids using the wording "open standards", but many indications and references make it clear that it points to that when it refers to "standard based procurement". The two main working documents describing how public procurement should be done to avoid lock-in are in

• •A Communication titled "Against lock-in: building open ICT systems by making better use of standards in public" 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 the use of open standards for the outward channel, but transparency leans heavily towards the use of standard-based decisions and modular, vendor independent, lock-in averted solutions. 

The cited documents take no stance towards (or against, for that matter) Free Software in the lock-in avoidance context. However it seems that one cannot take any conclusions from this omission, only that the lock-in avoidance shall be taken into consideration with all kind of licensing regimes or development environment or technology. At the same time there seems to be no contradiction in the principle we have introduced that Free Software enhances the anti-lock-in power of the user (so much that even the user has the permission to be developer). And we reiterate the fundamental concepts:

• •Truly Free Software solutions are outside the control of the vendor. The vendor can have a temporary control or even have a stronghold over one solution, but examples exist that when this control is too tight and against the interests of the Community, the ability to "fork" is an essential tool that exerts a constraint on any dictatorial vendor. 92  
• •The availability of source code, and possibly a healthy and diverse development community, is a guarantee that there is no orphan work or constrained upgrade path. Free Software allows the choice to buy or make, or to have made by others unrelated to the copyright holder. Proprietary software vendors have incentives and abilities to lock clients in 93.  

• •Free Software vendors have less, or even no incentives toward locking their clients in, because efforts would be largely ineffective or impossible. De facto, most of Free Software project tend to use open standards,and non open standards and format only if network effects make the former non viable.  

• •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

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.

It is therefore important, in the view of the authors, that any 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.

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 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.

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.

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 networks and other public, semipublic and semiprivate communications tools, emails remain by and large a ubiquitous way of communicating, both individually (one-to-one) and on a larger scale (one-to-many, many-to-many) for example via discussion lists.

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 public 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 information 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.

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 important that their adoption does not impair the 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.

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.

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.

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.

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 based 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.

[...] 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.

• •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 exposing the privacy 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.

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 possibility we 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 means 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 through 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 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".

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.

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.

 

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/

 

 

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  

2Regulation (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

3Rules 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  

4Rules 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

5Case C-58/94 Netherlands v Council [1996] ECLI:EU:C:1996:171 at para 18.

6See in that regard, for example, Chiti, E., "Further Developments of Access to Community Information: Kingdom of the Netherlands v. Council of the European Union", European Public Law, Vol. 2, No 4, 1996, p. 536 et seq.; Lafay, F., "L'accès aux documents du Conseil de l'Union: contribution à une problématique de la transparence en droit communautaire", RTD eur. 33(1), January-March 1997, p. 37 et seq.; Bradley, K. St. C., "La transparence de l'Union européenne: une évidence ou un trompe-l'oeil?", Cahier de droit européen, 3-4, 1999, p. 283 et seq.; Travers, N., "Access to Documents in Community law: on the road to a European participatory democracy", The Irish Jurist, Vol. 35, 2000, p. 164 et seq. For a different interpretation, see, for example, Ragnemalm, H., "Démocratie et transparence: sur le droit général d'accès des citoyens de l'Union européenne aux documents détenus par les institutions communautaires", Scritti in onore di G. F. Mancini, p. 809 et seq., Öberg, U., EU Citizen’s Right to Know: The Improbable Adoption of a European Freedom of Information Act, Cambridge Yearbook of European Legal Studies, Vol. 2, 1999, s. 303-328

7Judgement European Parliament v. Council EU:C:2014:2025, paragraph 80-81

8Broberg, M., Access to documents: a general principle of Community law?, European Law Review (2002), pp. 196, 197

9Within the meaning of the judgement in Case 26/62 Van Gend en Loos [1963] ECR 1

10Case 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

11Case T‑14/98 Hautala v Council [1999] ECR II‑2489, paragraph 87

12Case T‑211/00 Kuijer v Council [2002] ECR II‑485, paragraph 52

13Case T 264/04 WWF European Policy Programme v Council [2007] ECR II-911 at para 76.

14Case C‑353/99 P Council v Hautala [2001] ECR I‑9565, paragraph 31

15Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14

16Pitsiorlas v Council and ECB, paragraph 221-223

17Sweden v Commission, C‑64/05 P, EU:C:2007:802

18Commission v Agrofert Holding EU:C:2012:394, paragraph 88

19OJ 2005 L 262, p. 1

20Opinion Afton Chemical EU:C:2010:258

21See Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998‑I).

22Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 44, 14 April 2009.

23Application no. 48135/06, http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120955

24European 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/

25Document CCPR/C/GC/34 of 12 September 2011, §§ 18, 3, 15)

26Interesting 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

27Opinion of Advocate General Cruz Villalón in Case C‑280/11 P Council v Access Info Europe, EU:C:2013:325

28Opinion 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)

30Sweden and Turco v Council, paragraph 46 and Council of the European Union v Access Info Europe, paragraph 00

31Nikoleta 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

32Directive 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’)

33Council 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)

34Sweden's reservation is available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-13&chapter=27&lang=en#EndDec

35Opinion Flachglas Torgau EU:C:2011:413

36http://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

37General 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.

38Council 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.

39C-350/12 P, Council v In 't Veld, ECLI:EU:C:2014:2039

40Decision 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

41Directive 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)

42Directive 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)

43In the remainder of this section, by using "PSI Directive" we make reference to the amended directive.

44See note above

45EU 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

46EU 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

47http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:107:0038:0041:EN:PDF

48http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:330:0039:0042:EN:PDF

49Statskontoret, 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/.

50Björn 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.

51Web 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.

53Some information on the adoption of accessibility standards, a recent book is Buie, Elizabeth; Murray, Diane (2012). 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. 

57For 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."

58DeNardis, 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

59Updegrove, Andrew. "With Access and Information for All". Consortium Info. Retrieved 25 July 2014. 

60Updegrove, Andrew. "How Open Must an Open Government Platform be?". Retrieved 25 July 2014. 

61For 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

62A good list of sources on cryptography and the problem it solves can be found at "Cryptography". Retrieved 9 December 2014. 

63See 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. 

65European 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. 

70EIFv2 , page 26

71Most telling the EU-commissioned study for the European Commission - Directorate-General for Enterprise and Industry, cfr pag. 130.

72For 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.

73Also 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. 

74UK Cabinet. "Open Standards principles". Retrieved 11 November 2014. 

75Government of India. "Policy on Open Standards for e-Governance". Retrieved 25 July 2014. 

76"Open Standard". Wikipedia. Retrieved 7 August 2014. 

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.

78IETF (Internet Engineering Task Force) http://ietf.org/

79Internet Society http://www.internetsociety.org/

80e.g., the IMAP Protocols, see among them  "IMAP protcol, RFC1064". Retrieved 25 July 2014.

81See IETF RFC 3979

82For 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. 

84Full text at "The Open Source Definition". OSI. Retrieved 7 August 2014. 

85Or 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. 

86Raymond, Eric S. "The Cathedral and the Bazaar". Retrieved 11 August 2014

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. 

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. 

92A 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).

93The 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.

94Directive 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

96Creative 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. 

99An open data definition, modelled upon the Open Source Definition can be found at "Open Definition". 

100See for instance US's "Executive Order -- Making Open and Machine Readable the New Default for Government Information". Retrieved 8 August 2014. 

101"Open Data Charter". Retrieved 8 August 2014. 

102A 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. 

106One 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. 

107http://tools.ietf.org/html/rfc5321

108http://tools.ietf.org/html/rfc3501

109http://tools.ietf.org/html/rfc1939

110"Exchange Server Protocols". Retrieved 7 October 2014. 

111http://tools.ietf.org/html/rfc5246

112This 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

113Obviously 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

114http://tools.ietf.org/html/rfc5751

115http://tools.ietf.org/html/rfc4880

116http://www.ietf.org/rfc/rfc2369.txt

117Interoperability 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. 

120"Open document formats selected to meet user needs". Retrieved 13 October 2014.

121http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2013/2188%28INI%29

122See 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&oldid=16920

123Jonatan 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.

124Siri Reiter is a graphic designer, illustrator and artist. She graduated at Kolding School of Design and works primarily from Orø, Denmark.