Thesis-Anne-Vos-Masters-SBR-and-EU-Law-3

5.3 General principle: transparency principle
5.3.1 EU level
The transparency principle is the newest principle of the EU general principles. It has been the
subject of debate whether this principle should actually be considered as a general principle of
Union law. The CJEU has confirmed this for the first time in the case Commission v Italy. 244 This
position is also argued in literature. According to Buijze, the principle should be considered as a
general principle of Union law; although mostly seen in certain areas, such as in procurement law,
it is applicable in the entire legal system. 245
There is no general acknowledged definition of the principle. It appears in several subject areas
and contexts and it overlaps many other general principles such as legal certainty, equality and
principle to state reasons. Several authors give different definitions. The general meaning of the
principle, according to Buijze, is that the information on government action should be available in a
clear, obvious and understandable way. 246 According to Prechal & De Leeuw "the more precise
meaning of transparency depends on the context in which it is used, the function it is expected to
fulfil and therefore also the interests it is aiming to protect." 247 The manner in which the
transparency is justified by the underlying aims and objectives, the more weight could be attributed
to the principle. 248 There are several appearances of the transparency principle which appear in all
general EU law areas, such as transparency in the sense of an open and accountable government,
clarity of procedures, clear drafting and the obligation to state reasons. There are also some
specific EU law areas in which the appearance of the transparency principle has been crystallised,
such as in the area of public procurement. This latter application is also finding its way into the
area of scarce licenses and decisions. These specific areas will not be elaborated in more depth
here. Although public procurement is part of the granting of shale gas extraction licenses, that part
is not the focus of this thesis and will therefore be left aside here. Moreover, the transparency
principle is much broader than only its application in public procurement.
The first appearance mentioned ('open and accountable government') is the most-developed
aspect of the transparency principle and includes the access to information in environmental law.
With regard to this appearance of the transparency principle, Prechal & De Leeuw argue that it
mostly functions at two 'levels' (or perspectives): at the political or constitutional level (closely
related to the principle of democracy and legitimacy) and at a more concrete administrative level
(closely related to the right to be heard and rights of defence). 249 Buijze also distinguishes two
aspects: first, the aspect that the transparency principle facilitates decision-making and second,
that it allows an outsider to observe what a transparent organisation is doing. 250 These are more or
less the same functions as referred to by Prechal & De Leeuw. First a short comment on the
second level to which Prechal & De Leeuw refer. This level relates to the rights of the defence.
Here, the right of access to the file comes into play. This right is derived from the condition of
procedural fairness, the principle of equality of arms and the right to be heard. 251
Better known is the first level of this appearance. This concerns the right of public access to
information. The notions of democracy, legitimacy and political accountability are closely linked
here, for which the transparency principle could be seen as a pre-condition. 252 The connection of
244
Case C-260/04 Commission v Italy [2007] ECR I-07083.
245
Buijze (2011), p. 241.
246
Buijze (2011), p. 241.
247
Prechal & De Leeuwen (2008), p. 202.
248
Buijze (2011), p. 241.
249
Prechal & De Leeuwen (2008), pp. 204-205.
250
Buiijze (2013), p. 54.
251
Prechal & De Leeuwen (2008), p. 209.
252
Prechal & De Leeuwen (2008), p. 205.
58