5. Sources of 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.

(a) Transparency, access to information, and data protection In the public eye, data protection laws are the most vivid example of access to information laws including access to information or data about oneself.21 There is an EC Directive (95/46) on Data Protection. Data protection laws are also derived from article 8 ECHR which concerns the protection of privacy. Some see it as incongruous that the Directive also seeks to facilitate cross-border flows of personal information for purposes of the single EC market. While the thrust of this chapter has been an argument in favour of freedom of information as a human right, we have no doubt of the essential importance of privacy protection. Data protection is not a complete privacy law, but it has a vital role to play in securing the integrity of individuals. It has been noted, however, that it can be abused by national governments, the Commission, and individuals. This particular subject emphasizes the importance of right to transparency, not only as a right to invoke in special situations but also as a right that is of continuing weight, especially in the digitalized ‘environment’.

The Directive and national laws implementing transparency have been invoked in order to deny access to information about the identity of individual officials or persons with whom citizens had met when there were no security or safety reasons not to allow disclosure of identity. These laws have also been used to prevent individuals from obtaining access to information because it contained personal data that was irrelevant to the request and in every other respect completely marginal to it. Data protection was sometimes simply a convenient excuse not to disclose. This begs a series of questions about the proper scope of privacy and the extent to which officials are themselves protected by privacy when performing public business. I have no doubt there is a serious issue in this wider question when personal safety is, or may be, in question. Too often, however, governments resort to overreach and don’t choose the genuine protection of personal privacy that is necessary and desirable.

(b) Transparency and access to environmental information Reference should be made to Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information.22 The Directive followed the Aarhus Convention on Access to Information, Public Participation in Decision-Making, and Access to Justice in Environmental Matters. This measure had to be implemented into the Member States’ law and it allows individual rights of access to environmental information, which is very broadly defined. Its scope is truly enormous; it also covers the security and intelligence services in the member states, although a national security exemption will apply to much of the work of these bodies. There is no doubt that access to environmental information will have significant human rights implications, a factor included in the decisions of the European Court of Human Rights (ECtHR) outlined in the following part. Environmental rights are referred to as one of the ‘third generation of human rights’, which will be detailed in Chapter 12. It seems appropriate to place access to information rights generally within this category of third generation rights.

21 Ibid. 22 Ibid.

(c) Transparency and the European Convention on Human Rights Reference has been made to the articles of the ECHR and various recommendations of the Committee of Ministers above on access to information.23 Article 10 is not a provision concerning access to information. Instead, it is one on free speech and freedom to pass on information. However, in Gaskin v United Kingdom, 24 the ECtHR ruled that article 8 (which guarantees a right to family life and privacy) may provide a right to independent arbitration of a contested claim to records held about an individual by a public authority. Access had been refused by the authority when the applicant, who had been brought up in the statutory care of the local authority, claimed that he had suffered damage as a consequence of the authority’s negligence. The refusal to give access was not subject to any independent system of arbitration to determine whether grounds for withholding personal information under article 8(2) were justified. Sdruženi Jihočeské Matky v Czech Republic25 must be mentioned here because this case was the first time the ECtHR actually applied article 10 ECHR in an access of information case. There has been a reluctance to recognize a positive obligation to supply relevant information regarding matters of public interest, but this case held that ‘there are indications that the Court’s position is changing’.26

In Guerra v Italy, 27 the former European Commission on Human Rights (CHR) believed that local residents had an entitlement under article 10 to access environmental information about a chemical works programme that was causing pollution. The CHR disagreed with this finding on article 10 but did find a breach of duty by the state under article 8, insofar as there was an interference with family and private life by not ensuring disclosure of information about harmful substances. In McGinley and Egan v United Kingdom, 28 the ECtHR determined that members of the British armed forces would have a right under article 8 to access documentation on the effects of experimental atomic explosions on those members of the armed forces who had witnessed them. However, since they had not yet exhausted all domestic provisions, their rights had not been breached in the case. The following excerpt from the judgment is full of potential:

When a government engages in hazardous activities, such as those in issue in the present case, which might have hidden adverse consequences on the health of those involved in such activities. Article 8 requires that an effective and accessible procedure be established which enables S165 such persons to seek all relevant and appropriate information.

One only needs to refer to Fressoz v France29 to demonstrate the close relation between the right to free speech under article 10 and the right of access to information. On many occasions, courts have determined that a criminal defendant’s right of access to information held by the prosecutors is a requirement to guarantee a fair trial under article 6. It has also illustrated a very difficult dilemma of ensuring a fair criminal trial in circumstances in which state security or informers’ identities may allegedly be compromised.

23 Ibid. 24 ECtHR 7 July 1989, 10454/83 (Gaskin v The United Kingdom). 25 ECtHR 10 July 2006, 19101/03 (Sdruženi Jihočeské Matky v Czech Republic). 26 Hins and Voorhoof 2007, 114. 27 ECtHR 19 February 1998, 14967/89 (Guerra and others v Italy). 28 ECtHR 9 June 1998, 10/1997/794/995-996 (McGinley and Egan v United Kingdom). 29 ECtHR 21 January 1999, 29183/95 (Fressoz v France).

These are European cases, but one should not ignore developments from the American continent. The meaning of freedom of expression has been tested in the Inter American Court on Human Rights (IACHR) in relation to access to information. Article 13 IACHR (a free speech provision) has been invoked to provide an access right to state-held information. The litigation concerns a refusal by Chile to provide information about inward investment and its environmental impact. The dependence of freedom of speech upon freedom of information is raised once again in these proceedings.

The transparency principle has now also made its entry on the European stage. Here, it is also about increased publicity of the work of European institutions like the Council of Ministers and the European Commission as well as increased access to EU documents.30 The EU Publicity Regulations, effective since 1 December 2001, are very important in this respect. These Regulations primarily regulate access to documents in the hands of European institutions as well as contain restrictions. However, because there is an intensive exchange of documents among the EU and member states, many European documents are in the hands of member state governments. For this reason, the European Publicity Act also applies to European documents that are kept by the Dutch government, ministries, and other public bodies among others. On 18 April 2007, the European Commission presented a green paper31 about the effects of Regulation 1049/2001 on public access to documents from the European Parliament, the Council, and the Commission. This can be seen as an assessment of the impact of the law on the accessibility of documents. Meanwhile, judicial experience has been gained with regards to the Regulation and judicial decisions have been reached explaining the Regulation. The European Ombudsman has also published advice on this matter. In addition, in 2005, the Commission initiated the European transparency initiative which calls for the revision of the Regulation to facilitate increased publicity. The European Parliament has since called on the Commission for proposals regarding the Regulation’s revision.32 The transparency principle has further entered into specific areas of European administrative law, for instance, competition33 and environmental law34 and, it is also included in two European tender regulations.35

Besides legislation, the Court’s jurisdiction also pays attention to the transparency principle.36 In some cases the transparency principle is connected to, or is part of, the principle of equality.37 In other cases it is applied without violating the equality principle. It goes without saying that the transparency principle often precedes the principle of equality. The transparency principle can sometimes also be connected with the

30 Widdershoven and others 2007, 85ff; in addition, see Prechal and De Leeuw 2007, 51–61. 31 European Commission, Green Paper on Public Access to Documents held by institutions of the European Community, 18 April 2004, COM(2007)185. 32 The consultation round on this Green Paper runs up to mid-July 2007. According to the Commission’s schedule it will respond to the consultation in September and make propositions for any adjustments of the regulation as soon as October 2007. 33 Articles 5 and 6 of Directive 2002/21/EC for market supervisors. 34 A separate regulation has since been effected concerning access to environmental information, see Regulation (EC) 1367/2006 of the European Parliament and the Council, 6 September 2006. It is based on the implementation of the Aarhus Convention. 35 Article 2 of Directive 2004/18/EC, coordination of the procedures for placing government commissions for works, provisions and services; art 10 of Directive 2004/17/EC, coordination of the procedures for placing commissions in the departments of water and energy supply, traffic and postal services. 36 For the first time, ECJ 25 April 1996, C-87/94, Commission v Belgium, ECR I-2043. 37 ECJ 18 November 1999, C-275/98, Unitron, ECR I-8291; ECJ 12 December 2002, C-470/99, Universale-Bau, ECR I-11617; and ECJ 4 December 2003, C-448/01, Wienstrom, ECR I-14527.

principle of legal certainty, although they do not completely overlap. A natural conclusion is that the transparency principle at the European level has grown from a principle of contract law into a general legal principle especially in the administration of justice. However, it still depends on, and is discussed in connection with, other legal principles like the principles of equality and legal certainty.

(d) Transparency on the WTO level For a long time, there has been talk with respect to the WTO and the desirability of giving further meaning to the transparency principle.38 This talk has not only come from within the WTO but also from many governments,39 NGOs,40 individuals, and (European) institutions41 insisting on more transparency in the administration of the WTO as well as the processes that take place. In Cancun, 2003, it was ascertained that there is a great need for more democracy and transparency in WTO processes and procedures. An end must be brought to the confusion among the legislative, executive, and judicial powers of the WTO; to the secrecy surrounding the functioning of most WTO organs; to the ‘Green Room’ and ‘Mini-Ministerial Conferences’; and to the sham democracy that is based on the method of implicit consensus. The critique on the lack of transparency at the WTO has become fiercer and, at the preparations for the meeting in Hong Kong in June 2005, there were further pleas made for revision of the conciliation mechanism42 to make it more transparent and accessible to the member states, thereby enhancing legal security through publicity and independence. The European Parliament has also insisted on the reform of the WTO, not only in terms of more internal transparency, but also more external transparency in cooperating with other international organizations and developing countries.43

Despite the internal and external unrest and the associated political pressure, attempts at implementing the transparency principle with respect to the internal and external functioning of the WTO regulations have so far been unsuccessful.44 The usual explanation for this is that the transparency principle is a typically western product and that it is only beneficial to western countries, not to the other countries in the world. This argument then invariably leads to stagnation in the substantive exchange of thoughts on, arguments for, and the further development of, the

38 Among others: Wolfe 2003 and Mori 2007. 39 In a response to the Seattle meeting, the Dutch government advocated more external transparency. 40 At the time of the WTO meeting in Seattle in December 1999, there was an appeal for more transparency in the WTO; in June 2005, a similar appeal was made from Belgian NGOs at the preparation of the WTO meeting in Hong Kong. 41 In 1994, the European Parliament, in a motion, demanded maximum transparency of WTO activity; in 1997, a motion was accepted for an annual report to be handed to the parliament by the Commission regarding its WTO activity. 42 One task of the WTO is to mediate business disputes between members. The existing GATT procedures for conciliation are, compared to the WTO, easier to execute and more efficient. Individual WTO members cannot stop a decision made by the organ responsible for conciliation. Besides a direct appeal to the WTO to act as referee, a member state is also able to appeal to two specific regulations. 43 See the defence of member of the European Parliament, Van Hecke, on 5 March 2008. 44 The WTO regulations are concerned with the stipulations of the GATT and agreements that were made during several GATT rounds. This means that countries that want to become members of the WTO have to abide by all these GATT stipulations. In addition to the GATT agreements, the WTO covers a large set of further rules on trade in goods, agreements on disruptions in agricultural trade, among which are disciplines for market access and agricultural grants, as well as rules for trade in services and protection of so-called ‘intellectual property’.

transparency principle as it relates to the WTO.45 Whilst 1 January 2008 marked the multilateral trade system’s sixtieth year of existence, a milestone in the history of GATT and its successor WTO, the transparency principle as it relates to the WTO finds itself at an impasse.

Complaints about the lack of democracy at the WTO, such as the lack of transparency in decision-making processes and other procedures of the organization, were earlier discussed. In The Glass Case, Roberts46 points out that there is ‘a host of disclosure requirements now imposed on countries through WTO agreements’. If the WTO requires its members to participate in its disclosure requirements without being transparent itself, how would it expect WTO members to fully embrace the legitimacy of its decisions? I think that this point should be discussed in the book to assist it in enabling the expectation of transparency on the part of the WTO as much as it does from its WTO members The WTO will have to further engage in discussions with social organizations without losing its character as an intergovernmental organization. Moreover, it will have to pay significant attention to existing issues regarding the environment, health, and fundamental work standards connected to international trade. The WTO has created a conciliation mechanism and, thanks to this mechanism, the law of the jungle does not apply. However, the capacity and quality of conciliation needs to be investigated, especially the real-life effectiveness of this mechanism in developing countries. The problem is how compliance with panel jurisdiction can be ensured. Revision of the conciliation process within the WTO is currently needed especially in terms of which conciliation panels and hearings of the board of appeal should be opened to the public. UN agencies should play a role in these panels. In short, a revision of the conciliation mechanism so that it becomes more translucent and accessible to all member states would increase legal security in the area of publicity and independence.

These seemingly secondary aspects keep the WTO from doing its actual job, which is obviously to stimulate trade. This is achieved by encouraging countries to negotiate the lowering of import duties, the abolition of rules that restrict trade, and by applying the same rules for all countries. The WTO cannot make rules itself; decisions can only be made if all countries are in agreement. The foregoing makes it appear as if the WTO pays little attention to the transparency principle, however, this is not the case. For this reason, the current elements of the transparency principle at the WTO will be discussed in order to determine which additions and adjustments are possible and desirable.

In the original GATT there were a number of articles that implied a requirement of transparency.47 First, article X stipulated that certain regulations and judicial decisions were to be published quickly and in such a way that the governments and trade organizations could become acquainted with them. The second clause stated the same regarding measures that could influence international trade and agreements. The third clause stipulated that measures were to be applied in a uniform, impartial, and reasonable way.

Besides these (mainly procedural) requirements for publicity in article X, there were also some more substantive references to the transparency principle. Article XI:1

45 The WTO is based on several principles, the most important of which are: the ‘Most Favoured Nation’ principle, the ‘National Treatment’ principle, the principle of preferred rates, and the principle of conciliation. 46 Roberts 2006. 47 Zoellner 2006.

stated that all duty-free borders should be removed. This was also stipulated in article VIII:1b and 1c, which stated that parties should recognize the need to limit the number and diversity of duties and taxes. This was also concerned with lifting duty-free borders.

Third, the more recent WTO agreements contain obligations for publishing that go further than those contained in GATT. These requirements are not only to publish standards that are agreed upon, but also to supply them together with reasonable explanations and to provide ample opportunity for foreign governments to comment, in advance, on proposed standards.

Fourth, the deals that were made during the Uruguay round of negotiations elaborate further on the content of the transparency principle. According to these deals, standards should be based on achievements of products and on scientifically accepted assumptions.

The foregoing does not alter the fact that the transparency principle has been a controversial subject on the WTO agenda since 1996. That year, the controversy led to the establishment of the ‘Working Group on transparency in Government Procurement’, which had the task of conducting a study on the meaning of the transparency principle in public contract practice. Within the WTO, it is clear that whilst some countries are very sceptical and only class a limited number of cases under it, for example India, Pakistan, Malaysia, and Egypt; other countries that already have much further advanced systems want to class more cases under the regulations, such as EU countries and the United States. It appears that the second group ultimately gained the upper hand.

(e) Improving the transparency principle at the WTO level The transparency principle, with respect to the WTO, could be specified through several paths. Articles X and XI oblige publication in more recent WTO agreements, and concrete suggestions fit within the WTO developments could be made from the experience of the European and Dutch development of the transparency principle.

First, there is the need to specify the possibilities for more internal transparency. This involves making the internal organizational structure less opaque, especially the publicity of the processes taking place and the procedures followed. There are a number of bodies involved in the execution of agreements between member states of the WTO including the Ministerial Conference (MC), the General Council (GC), and the Secretariat. There should be regulations on the announcements of MC and GC meetings and the preparations for them as well as post-hoc reports. The same is true for national parliaments. This type of publicity would enable citizens, companies, and NGOs to discern which aspects are under discussion. After the purportedly positive experience with the EU Publicity Regulations, the Netherlands should—as was concluded in June 2006 regarding increased publicity of Council meetings—take the initiative to apply the same publicity regulations to the MC and GC. The MC and GC’s Code of Order would need to be adjusted to such an extent that all MC and GC meetings with a public interest would be made public. The Netherlands would have to closely follow this process and actively contribute to it. Such government regulations for MC and GC meetings would then have a positive effect on the democratic legitimacy of the WTO.

Second, the publicity of WTO documents should be regulated in a more precise way. The current regulations contained in articles X:1, X:2 and X:3a are imprecisely