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The Principle of Transparency
as a distinct topic, because the Convention believed that what was required was more transparency and simplification of structure in the EU. The EU (2004) draft constitution placed access to documents in article 1-50 within Part I of the draft-Treaty and places the basic constitutional measures under the title (nr. VI) on ‘Democratic Life’ within the EU.20 The right covers access to documents in the possession of the institutions, including the European Council, the agencies, offices, and bodies of the EU. Its scope was far wider than the at that moment present Regulation since it covered agencies and committees of the Council and Commission. The right of access was accompanied by the principles of democratic equality (article 1-45), representative democracy (article 1-46), participatory democracy (article 1-47), and, among other things, data protection (article 1-51). Access founded also its way into the Charter of Fundamental Rights in Part II (at that moment as a part of the draft constitution) as article 11-102 (article 42 final version of the Charter), together with a right to good administration (article II-101; article 41 final version of the Charter) and in Part III, article 111-398 makes provision for an ‘open, efficient and independent European administration’. Article 111-399 conferred a right of access to documents held by the bodies covered in article 1-50. In addition, the ECJ and European Central Bank were for instance covered when exercising ‘administrative functions’. Some of the norms in the draft-constitution, like the norm for an ‘open, independent and efficient European administration’, are still under discussion as we can see from the European Parliament study of July 2018 and can be found in the frame of the different principles of good governance as explained here. The Convention on Fundamental rights was proclaimed on 7 December 2000. A modified Charter formed part of the defunct European Constitution of 2004. In 2007, the Lisbon Treaty gave force to the Charter by referencing it as an independent document rather than by incorporating it into the treaty itself. But, following the entry into force of the Lisbon Treaty in 2009, the fundamental rights treaty became of the same legal value as the European Union treaties. Despite some possible criticisms about the process, these are crucial developments in the EU, and there is no doubt that the freedom of information is treated as a constitutional and fundamental human right. In a 2005 European Data Protection Supervisor publication, public access to information is described as a fundamental right along with privacy, data protection, and integrity of the individual established under the EC Data Protection Directive.
5. Sources of the Principle of Transparency Most of the norms pertaining to the principle of transparency have been worked out in the regulations and, therefore, the sources are these regulations on transparency and the three sub-principles as explained before. On the European level three sources are elaborated upon: the Directive on Data Protection; the Directive on Environmental Protection; and the European Convention on Human Rights. The international level is covered by transparency on the WTO level.
and T-405/03, Sison v Council, ECR II-01429 (rejecting the plea for access to documents as unfounded and refusing the access); see also Stolk and others 2005, Transparency in Europe 11: public access to documents in the EU and its member states. 20 Birkinshaw 2006.
