Opinion of the Advocate General — ECLI:EU:C:2026:166
Date: 2026-03-05
Language of the case: Czech

Summary of the case-law concerning a reference in national law to EU law 36. In that regard, it should be noted that the Czech legislature also established a right of access to information in relation to entities falling within the concept of ‘public undertaking’ within the meaning of Directive 2019/1024. By that reference, it transposed into domestic law a concept specific to EU law, but applied it to situations that are not covered by the scope ratione materiae of that directive. That extension creates an overlap between two sets of rules which are prima facie distinct, the relationship between which can be fully understood only by analysing them in the light of their specific purposes. I will come back to this point later. 37. The Court’s interpretative jurisdiction is strictly limited to the provisions of Directive 2019/1024 which have actually been transposed into national law and are relevant to the resolution of the dispute. A strict reading of the conditions governing the preliminary ruling procedure should therefore result in the Court’s jurisdiction to interpret the concept of ‘public undertaking’ where it is used solely in the context of a dispute relating to national law on access to information, as in the present case, being excluded. However, the case-law allows an exception where the national legislature voluntarily adopts concepts of EU law to govern an area distinct from that covered by secondary legislation. In such a context, the existence of an EU interest in ensuring the uniform interpretation of those concepts may justify referring the matter to the Court. 38. It is precisely within that context that the case-law resulting from the judgment in Dzodzi arose, according to which the Court may be called upon to interpret a provision of EU law incorporated into the domestic legal order in order to prevent national differences from jeopardising the harmonisation sought at EU level. However, that extension of jurisdiction remains strictly circumscribed. It requires, first that the provision in question has been transposed or incorporated into domestic law and, secondly, that there is an objective interest on the part of the European Union in ensuring its uniform interpretation. The mere reference to a conceptual category of EU law is not sufficient: it must be demonstrated that there is a functional link between the scope ratione materiae of EU law and the national legislation which reproduces it. 39. In practice, that case-law applies where a dispute, by its nature, falls outside the scope of EU law, but where the national legislation at issue refers directly and unconditionally to provisions of EU law, thus establishing that functional link between the provision of EU law and national law. In such a case, the jurisdiction of the Court is justified where there is a sufficiently close link between the provision of EU law thus made applicable and the national legislation, with the result that the resolution of the dispute is dependent on its interpretation. (17) 40. That approach by the Court shows that, even where the dispute is primarily a matter of national law, the deliberate incorporation of concepts from EU law may create scope for the Court to intervene, provided that the interest of the European Union in ensuring uniform interpretation is clearly demonstrated. In that regard, it should be noted that both the European Union and its Member States have an interest in avoiding a situation where the same concept is given two interpretations, one applied in the context of the implementation of EU law and the other in a purely domestic context. (18) However, the reference for a preliminary ruling remains strictly functional, since the Court does not rule on purely national issues, but only on those whose interpretation may affect the consistent application of EU law. That requirement serves to reconcile the principle of subsidiarity with the need to preserve the effectiveness and coherence of secondary legislation. 41. According to the case-law, the specific factors that allow it to be established that the provisions of EU law have been made applicable by national law must be apparent from the order for reference itself (19) or, at the very least, from the response given by the referring court to a request for clarification to that effect made by the Court. (20) My analysis is therefore based primarily on the information given by the referring court on the specific features of the Czech legislation. The information which makes it possible to understand how the Czech legislature intended to transpose Directive 2019/1024 into its domestic legal system is of particular importance in that regard. 42. In the light of those considerations, it is necessary to examine, in the present case, whether the conditions established by that case-law are satisfied in order to determine whether the Court has jurisdiction. 2. Application to the present case of the case-law on a reference to EU law (a) The transposition or incorporation of a provision of EU law into domestic law 43. First, it is necessary for a provision of EU law to have been formally transposed or incorporated into the national legal order. This means that the EU rule in question, which initially fell within the exclusive competence of the European Union, has been taken up by the national legislature – whether by means of a law, decree or any other domestic legal instrument. 44. That condition is clearly satisfied in the present case since, as I stated above, the Czech legislature has incorporated the concept of ‘public undertaking’, derived from EU public procurement legislation, (21) and subsequently reproduced in Directive 2019/1024, into the Law on free access to information. That concept must therefore be considered to have been made applicable in national law, even though it is used in an area which is prima facie distinct from that envisaged by the EU legislature, namely that of public access to information. (b) The existence of a direct and unconditional reference to provisions of EU law 45. Secondly, the case-law requires national law to contain a ‘direct’ and ‘unconditional’ reference to the provisions of EU law whose interpretation is sought, in order to establish an effective legal link between the national rule and the supranational rule. (22) That requirement ensures that the application of the national provision is strictly subject to EU law, thus enabling the Court to contribute to the uniformity of its interpretation and to avoid any divergence between the Member States. 46. Under that condition, the Court is called upon to give a ruling only where its intervention proves necessary to ensure harmonisation at EU level, and not in every case involving provisions derived from EU law. The criteria established by the case-law thus appear to be instruments intended to identify cases where this applies. In order to apply those criteria correctly to the present case, it is first necessary to clarify the meaning and scope of the concepts ‘direct reference’ and ‘unconditional’ reference. (1) Direct reference 47. The term ‘direct’ must be understood as meaning that the reference must be express and unambiguous. (23) Those attributes presuppose that the national legislation expresses in a sufficiently clear manner the intention of the legislature to refer to the content of provisions of EU law. However, it is not necessary for the reference to the relevant EU rules to be explicitly included in the text of the applicable national provision itself, provided that the provision is formulated in a sufficiently precise and unequivocal manner. 48. In that regard, it should be noted that the Law on free access to information states, in Paragraph 1 thereof, that it ‘transposes the relevant provisions of EU law and lays down the rules relating to the provision of information and the conditions for exercising the right of free access to that information’ (24) (emphasis added). The first footnote provides some clarification in that regard, stating that the provisions of EU law which the law in question is intended to transpose are those of Directive 2019/1024. This is also emphasised by the referring court in its response to the Court’s request for clarification. 49. As regards, more specifically, the definition of ‘public undertaking’ set out in Paragraph 2a of the law in question, it should be noted that it essentially reproduces the content of the definition set out in Article 2(3) of Directive 2019/1024. That concordance is particularly evident in the criterion relating to the ‘dominant influence’ exercised by public authorities over the undertaking concerned, the interpretation of which is the very subject of the request for a preliminary ruling made by the referring court. 50. According to the explanations provided by the referring court in response to the Court’s request for clarification, the Czech legislature deliberately decided to ‘align the scope ratione personae of the Law on free access to information with that of the directive’. This is also confirmed by the fact that the wording of the relevant provisions and the explanatory memorandum are almost identical, as is the comparative table entitled ‘Compatibility with EU law’, annexed to draft Law No 241/2022. 51. The intention of the Czech legislature to make a ‘direct’ reference to the provisions of the directive, within the meaning of the Court’s case-law, is corroborated by the travaux préparatoires, from which it is apparent that the purpose of the Law on free access to information, in its original version, was already to transpose Directive 2003/98, that is to say, the earlier legislative act. (25) Following the revision of that instrument, the Czech legislature considered it necessary to incorporate, by means of an amending law, the adaptations introduced by Directive 2019/1024 in order to ensure continuity and the conformity of the national framework with EU law. 52. Consequently, it must be held that the first of the conditions established in the Court’s case-law is satisfied in the present case. (2) Unconditional reference 53. The word ‘unconditional’ must be understood as covering two distinct requirements. It implies, on the one hand, that the provisions of EU law referred to are applicable without limitation to the situation at issue in the main proceedings, (26) with the result that the referring court cannot depart from the interpretation provided by the Court of Justice. (27) That interpretation follows from the case-law according to which the Court’s judgment should have a binding effect in the main proceedings. (28) 54. That first requirement is satisfied in the present case, in the light of the clarifications provided by the referring court, from which it is apparent that the relevant provisions of Directive 2019/1024 apply without restriction in the main proceedings. According to the referring court, it itself took the view that it could not depart from the interpretation to be given by the Court. It is therefore in the legal interest of the European Union for provisions of EU law to be interpreted uniformly in order to forestall future differences of interpretation. That indication confirms that the Court’s interpretation of the concept of ‘public undertaking’ in the present case will be binding on the referring court even though it specifically concerns the right of access. 55. The word ‘unconditional’ requires, on the other hand, the reference to be to the whole legislative context of the provision concerned, or, more technically, to the EU legislation in its entirety. (29) Consequently, a reference by the national legislature to a particular provision taken from the EU legislation cannot be classified as ‘unconditional’, since the application of the Court’s case-law in such a case and, accordingly, the reply to the question referred for a preliminary ruling, would run the risk of being irrelevant to the dispute in the main proceedings and, therefore, being purely hypothetical. (30) That requirement is intended to prevent questions being referred to the Court which do not have a sufficient functional link with the effective application of EU law. It reflects the desire, which is repeatedly reaffirmed in the case-law, to limit the jurisdiction of the EU Courts to cases in which the national legislation actually renders the relevant provisions of EU law applicable, and not to those in which it draws inspiration from them or simply transposes certain conceptual elements. (31) 56. Applied to the present case, that requirement leads to the conclusion that the Czech legislature transposed Directive 2019/1024 into the Law on free access to information. However, it did not limit that action to the strict fulfilment of the transposition obligations arising from EU law. On the contrary, it extended the scope ratione materiae of that directive to aspects relating to access to information, a matter which in principle falls within the scope of domestic legislative competence. In doing so, the national legislature extended the legislative scope of that directive, with the result that the rules on access to information are, to a certain extent, determined by EU law. Such an initiative demonstrates a desire to ensure the consistency and continuity of the national legal framework with the structural requirements of the EU legal order, beyond the minimum requirements imposed by that directive. 57. As is apparent from the travaux préparatoires, the Czech legislature considered that it was objectively ‘impossible to distinguish between a request for access to information and a request for re-use’. (32) It was therefore appropriate to offer applicants, in both situations, equivalent guarantees and processing arrangements. Since the entities responsible for examining those requests do not have the power to enquire about the motives or intentions of applicants, or to verify them, the Czech legislature considered that a single legal regime should be established. Such an approach was considered to be the most appropriate, both for the bodies subject to those obligations and, ultimately, for the applicants themselves. 58. The Czech legislature’s decision to adopt the same definition of ‘public undertaking’ in respect of the right of access and in respect of re-use is a key element of the national legislative architecture. By harmonising the definitions, it ensured substantive consistency between two traditionally distinct legal regimes, while making public undertakings subject to a two-fold obligation of transparency: that of communicating the information they hold and that of allowing its re-use. That approach contributes towards simplifying the legal framework and preventing differences of interpretation that may arise from the parallel application of different regimes. However, it also has a more subtle effect, indirectly extending the scope of EU law to situations that, in principle, fall solely within the scope of the right of access to information. Thus, the logic of Directive 2019/1024 is integrated into the very heart of the national regime relating to administrative transparency, strengthening the overall coherence of the system. (33) 59. In those circumstances, it should be considered that the link between the Czech legislation and EU law is ‘unconditional’ within the meaning of the Court’s case-law. The national law does not merely draw inspiration from Directive 2019/1024, but ensures its effective application by extending its legislative effects to situations governed by domestic law. That substantive and systematic reference to the directive, combined with the direct incorporation of its definitions and principles, gives EU law a decisive normative influence over the interpretation and implementation of the national legal framework. The reference is therefore ‘unconditional’ in that it relates to the whole legislative context of the directive and not to one of its abstract principles. (c) The interest of the European Union in ensuring a uniform interpretation of the relevant EU provisions 60. As I stated above, the requirement for a ‘direct’ and ‘unconditional’ reference to the provisions of EU law is intended, in essence, to identify situations in which there is a specific interest on the part of the European Union in ensuring a consistent and uniform interpretation of the concepts of EU law taken up by the national legislature, in order to prevent future divergences in the case-law. 61. Notwithstanding the direct and unconditional nature of the link between the Czech legislation and Directive 2019/1024, as highlighted in my analysis, it is still necessary to examine the objective interest which the European Union may have in ensuring a uniform interpretation of the concept of ‘public undertaking’ in the present case. (34) In my view, the true scope of those criteria is fully apparent only if the nature of that interest which is specific to the European Union is understood. That requirement follows from the very logic of the reference for a preliminary ruling, since the Court’s jurisdiction is justified only in so far as the question referred goes beyond the mere framework of the national legal order. 62. By exercising its interpretative jurisdiction, the Court contributes to the coherent and harmonious construction of the EU legal order. It is therefore in the light of that function that the contribution which the Court would be called upon to make in the present case, as well as the consequences of any failure to exercise that jurisdiction, must be assessed. As I shall explain in this Opinion, the interest in ensuring a uniform interpretation is clear in the present case. 63. The need to establish the existence of an interest on the part of the European Union in interpreting a particular provision taken up by the national legislature is explained by the indicative nature of the criteria established by the case-law. As I have already pointed out, those criteria are instruments intended to identify situations in which such an interpretation is required. (35) Where those criteria are met, there will generally be a presumption that there is a functional link with the EU legal order, but the fact remains that that presumption may be rebutted where there is no such link. 64. In order to avoid, where those criteria are met only formally, ultimately recognising the jurisdiction of the Court where there is no genuine interest on the part of the European Union, it is necessary to carry out a more detailed analysis of the inclusion of the provision taken up by the national legislature in the EU legal order. In that regard, its relationship with the provisions transposing Directive 2019/1024 is of particular importance. (1) The intrinsic and inseparable link between access to information and its subsequent re-use 65. It should be noted, in the first place, that the concept of ‘public undertaking’, as used in the Czech legislation, retains the function and scope conferred on it by EU law, in so far as it determines the entities subject to the obligations of transparency and of making available information which may be re-used. Its interpretation, even in a context falling within the scope of the right of access to information, cannot therefore be dissociated from that adopted in the context of Directive 2019/1024, as otherwise the consistency of the EU’s regulatory framework on open public data would be compromised. 66. Access to information is an essential prerequisite for any possibility of re-use. Re-use within the meaning of Directive 2019/1024 can relate only to information which has previously been made accessible, that is to say made available by a public authority or a public undertaking on the basis of a right of access granted to citizens. Moreover, a teleological interpretation of the relevant provisions of that directive, clarified by its recitals, confirms the existence of an intrinsic and inseparable link between access to information and its subsequent re-use, as I shall demonstrate below. 67. The fact that access to information is an essential condition for its re-use is already clear from recital 5 of Directive 2019/1024, which recalls that access to information is a fundamental right enshrined in the Charter of Fundamental Rights of the European Union, including the freedom to receive and impart information without interference by public authority. The reference to that fundamental right would have been pointless if it did not contribute to the attainment of the objective of re-use pursued by that directive. Recital 18 of that directive confirms that relationship between the two areas by stating that the European re-use policy refers to ‘accessible public data’, which presupposes the existence of prior access. 68. Recital 23 of that directive also emphasises that Member States must make all existing documents re-usable unless access is restricted or excluded under national rules on access to documents, while specifying that Directive 2019/1024 builds on the national rules for access to documents and is not intended to change them. Those principles are also reflected in several provisions of Article 1(2) of that directive, which make access to certain types of documents subject to the rules of national law, while paragraph 3 of that article reaffirms the validity of those national regimes. Consequently, Article 4(3) of Directive 2019/1024 allows public authorities to refuse a request to re-use data on the basis of the provisions in force in the Member State concerned or the provisions transposing that directive which exclude access to certain categories of documents. Lastly, recitals 27 and 28 of that directive highlight the need for Member States to ensure access to data, in particular for scientific purposes, and to develop the necessary strategies to facilitate the availability of such data. 69. In the second place, it should be noted that, although the two areas are distinct in their immediate purpose – one relating to administrative transparency and the other to the economic and social value of public data – they remain closely related and interdependent in their implementation. Admittedly, it is apparent from the analysis of Directive 2019/1024 that the right of access to information, recognised in the legal systems of several Member States and implemented by various administrative laws, as is also the case in the Czech Republic, is also intended to enable citizens to exercise democratic scrutiny over public administration. (36) However, that purpose does not in any way preclude the possibility that that right of access may also pursue other objectives, in particular the re-use of information thus made accessible for purposes which are also in the public interest and are covered by that directive, as is apparent from the recitals. 70. First, recital 14 of Directive 2019/1024 shows that the ability to re-use documents held by a public sector body ‘promot[es] transparency and accountability’. Secondly, it follows from recital 16 of that directive that open data policies, aimed at ensuring the wide availability and re-use of public sector information for private or commercial purposes, with minimal or no legal, technical or financial constraints, and which promote the circulation of information not only for economic operators but primarily for the public, can play an important role in ‘promoting social engagement’. That statement refers, in my view, to the interest of citizens in participating in the process of political decision-making in a democratic society. That public interest in transparency is not, however, inconsistent with the regulatory purpose of Directive 2019/1024; on the contrary, it must be regarded as broadly compatible with it. (37) 71. Directive 2019/1024 is implicitly based on that relationship between the two areas in so far as it does not create an autonomous right of access to information, but presupposes the existence, in each Member State, of an effective national system of access. The EU legislature ultimately intended to incorporate the concept of ‘re-use’ into an adjacent legislative framework, already created by the national legislature. By codifying those matters in a single legal instrument, the latter sought to facilitate their incorporation into the domestic legal order. Each has thus contributed to the coherence of an integrated legal framework, consisting of elements falling within the scope of both national and EU law. 72. It follows, for the purposes of the present case, that the interpretation of the concepts common to both areas, in particular that of ‘public undertaking’, must be approached in a consistent manner in order to avoid any contradiction in the application of the relevant rules. An artificial separation of those two regimes would be liable to undermine the purpose of Directive 2019/1024, which aims to ensure that public sector information is as widely available, transparent and economically useful as possible. There is therefore a need for uniform interpretation, which only the Court can guarantee. (2) The risk of differences of interpretation (i) Risks to the creation of a coherent European data space 73. It should be noted, in the third place, that the risk of differences of interpretation, should the Court conclude that it does not have jurisdiction to answer the questions referred by the national court in the present case, is by no means theoretical. An autonomous national interpretation could result in restricting, or, on the contrary, unduly extending, the circle of entities required to make their information available, thereby undermining the objective of harmonisation pursued by Directive 2019/1024. 74. The fact that the Czech legislature expressly took up the concept of ‘public undertaking’ as defined by Directive 2019/1024 for the purposes of ensuring access to information and its re-use implies that its interpretation at national level is intrinsically linked to that adopted by EU law. If that concept were nevertheless to be interpreted autonomously by the national courts, the risk of both terminological and functional divergence would be considerable. Such a development would inevitably lead to the emergence of heterogeneous national regimes, based on different criteria for determining which entities are required to make their information available. The national courts would be likely to interpret that concept, not only in that area, but also with regard to the right to re-use information, on the basis of their respective national laws, which would have the effect of depriving the requirements of EU law of their full effectiveness. Such divergence would undermine the overall coherence sought by the EU legislature and would jeopardise the attainment of the objectives of harmonisation pursued by Directive 2019/1024. (38) 75. An overly narrow interpretation would result in certain important entities – such as public companies operating in strategic sectors – being exempt from the obligations to make data available, thus depriving users and economic operators of essential resources. Conversely, an overly broad interpretation could lead to the excessive application of those obligations to entities which, under EU law, are not intended to be classified as ‘public undertakings’, which could disproportionately hamper their economic functioning. In both cases, the unity and effectiveness of the European regime for the re-use of public sector information would be undermined. 76. In addition to those risks, the differences of interpretation between Member States could also lead to distortions of competition within the internal market. Competing public undertakings established in different Member States could be subject to radically different obligations to make information available, depending on the scope that each national legislature attributes to that concept. Such fragmentation would lead to an imbalance in the administrative and economic burdens on those entities, thereby creating artificial competitive advantages the basis for which was not intended by the EU legislature. The objective of ensuring a level playing field, which underpins the entire open and harmonised data policy, would therefore be seriously compromised. 77. Moreover, the lack of a uniform interpretation of the concept of ‘public undertaking’ would be particularly problematic given its structural role in Directive 2019/1024. That concept determines one of the central elements of the scope ratione personae of that directive and determines which entities are subject to the obligations of openness and re-use. Fragmented interpretation would create legal uncertainty for both public authorities and private actors and might discourage innovation initiatives based on the cross-border re-use of public data. This would run counter to the fundamental objective of that directive of promoting the wide, transparent and economically useful availability of public sector data throughout the European Union. (39) 78. That ambition requires the creation of a coherent European data space based on common criteria and mutual trust in the extent of the obligations incumbent on public entities. Any divergence in the definition of ‘public undertaking’ would hinder the achievement of that space by limiting data interoperability, hindering cross-border re-use and reducing the ability of operators to develop digital services and products that are valid throughout the European Union. Thus, far from being a mere terminological debate, the uniform interpretation of that concept is essential to the coherence and effectiveness of the European legal framework applicable to the re-use of public sector information. (ii) Risks to domestic legislative coherence 79. In particular, it appears essential to adopt a uniform interpretation of the concept of ‘public undertaking’ in order to preserve domestic legislative coherence. A differentiated understanding of that concept within the same national legal order depending on whether it concerns access to information or its re-use would lead to a disparity in the procedural requirements governing requests made for those two purposes. However, such a situation would be difficult to reconcile with the requirements of systemic coherence, since, as I have already stated, the re-use of information logically presupposes that prior access to it has been granted. (40) It seems to me that similar considerations led the Czech legislature to establish a unified regime. (41) 80. Observance of the principle of legal certainty also supports a uniform interpretation of the concept of ‘public undertaking’ within the same domestic legal order. Legal subjects must be able to determine with certainty whether they fall within the scope of the relevant provisions. If that concept were interpreted differently depending on the regulatory area concerned, there would be legislative uncertainty which would prevent the entities concerned from being fully aware of their rights and obligations. Such legal uncertainty would be contrary to the general principle that rules must be stable and predictable, which is of particular importance in EU law. Only a consistent and cross-cutting interpretation can ensure that the entities concerned are able to assess precisely their obligations in respect of information or access. (42) 81. Moreover, the principle of equal treatment under EU law requires that the concept of ‘public undertaking’ be defined uniformly. Different interpretations depending on the legal context could lead to objectively comparable entities being treated differently, simply depending on whether an applicant relies on the right of access to information or on the right of re-use. Such a difference in treatment is not justified and could constitute unequal treatment of comparable situations. On the contrary, the principle of equal treatment requires similar situations to be treated in the same way in the absence of overriding reasons justifying a distinction. (43) That clearly precludes fragmentation of the definition depending on the area concerned. 82. Another argument stems from the principle of effectiveness, according to which provisions of EU law must be fully effective. Different interpretations of the concept of ‘public undertaking’ would risk undermining the objectives pursued by the directives concerned, namely promoting transparency, public accountability and the creation of a functioning internal market for information. If entities were classified differently depending on the legal area, this could lead in practice to significant obstacles to access to information or its re-use. Such fragmentation would undermine the effective implementation of EU law and would render the rules ineffective. Conversely, a uniform interpretation guarantees consistent application and ensures the full effectiveness of the provisions in question. 83. For the reasons set out in the preceding points, I consider that the European Union retains a clear interest in ensuring a uniform interpretation of the concept at issue, which is an essential condition for the overall coherence of the framework governing the transparency and re-use of public sector information. In that regard, it is for the Court to take account of that requirement and to contribute itself to that coherence by fully exercising its interpretative jurisdiction. 3. Interim conclusion 84. It follows that the Court has jurisdiction to rule on the interpretation of the concept of ‘public undertaking’ in the context of the dispute in the main proceedings. The existence of a direct and unconditional link between the national legislation and Directive 2019/1024, combined with the clear interest of the European Union in ensuring the uniform interpretation of that concept, justifies the question referred being regarded as falling within the jurisdiction of the Court to give preliminary rulings. It is therefore necessary to examine, in substance, the scope of the concept of ‘public undertaking’ in relation to the legislative framework of that directive and its incorporation into Czech law. VI. Conclusion The Court has jurisdiction to answer the questions referred by the Městský soud v Praze (Prague City Court, Czech Republic) by its decision of 23 July 2024. 1 Original language: French. 2 OJ 2019 L 172, p. 56. 3 Judgment of 18 October 1990, Dzodzi (C‑297/88 and C‑197/89, ‘the judgment in Dzodzi’, EU:C:1990:360). 4 OJ 2014 L 94, p. 243. 5 The ‘open data’ movement originated in the United States in 1957 to 1958 with the creation of the World Data Center System, an international network established during the International Geophysical Year to collect and make freely available large sets of scientific data. It was then given a legal basis in 1966 with the Freedom of Information Act, which was strengthened in 2007 by the Open Government Act, which made transparency and the dissemination of public data government priorities. The movement then spread to Europe, and in particular the United Kingdom and France, where national initiatives encouraged open data approaches and the re-use of public data. That momentum has gradually turned open data into a global effort to improve access to knowledge, foster innovation and enhance citizens’ participation (Noyer, J.-M., Carmes, M., ‘Le mouvement “Open data” dans la grande transformation des intelligences collectives’, Les débats du numérique, Paris 2013, p. 137). 6 See, in particular, recitals 3, 7, 15, 18, 36, 47, 61 and 65 of Directive 2019/1024. 7 See, in particular, recitals 2, 15, 17 to 19, 34, 66 and 68 of Directive 2019/1024. 8 See, in particular, recitals 3, 14, 27, 31, 32, 36, 46, 66 to 69 of Directive 2019/1024. 9 See, in particular, recitals 6, 11, 16, 23, 26, 49, 52 and 70 of Directive 2019/1024. 10 See judgments of 22 May 2025, Commission v Latvia (Open Data Directive and the re-use of public sector information) (C‑238/23, EU:C:2025:374); Commission v Bulgaria (Open Data Directive and the re-use of public sector information) (C‑237/23, EU:C:2025:373); Commission v Belgium (Open Data Directive and the re-use of public sector information) (C‑215/23, EU:C:2025:371); Commission v Netherlands (Open Data Directive and the re-use of public sector information) (C‑213/23, EU:C:2025:370). 11 A number of other Member States – including the Republic of Croatia, the Republic of Estonia, the Republic of Finland, the Portuguese Republic, Romania and the Republic of Slovenia – also appear to have opted to regulate the re-use of data and access to information within a unified legislative framework. 12 As EU law currently stands, the right of access to documents held exclusively by national authorities falls within the competence of the Member States, which determine its scope and the specific arrangements by means of their domestic transparency rules. The European Union has no general regime directly imposing obligations on national authorities; only certain sector-specific legislation – in particular on environmental information and the re-use of public sector information – lays down minimum requirements. However, those measures cannot be interpreted as establishing a general right of access to national administrative documents, with the result that that right remains largely unharmonised and governed by domestic law. 13 Judgment of 21 November 2024, HP – Hrvatska pošta (C‑336/23, EU:C:2024:979). 14 See judgment of 15 November 2016, Ullens de Schooten (C‑268/15, EU:C:2016:874, paragraph 40). 15 See judgments in Dzodzi (paragraphs 34 and 35); of 14 February 2019, Milivojević (C‑630/17, EU:C:2019:123, paragraph 47); and of 10 December 2020, J & S Service (C‑620/19, EU:C:2020:1011, paragraph 31). 16 See judgments of 16 June 2016, Rodríguez Sánchez (C‑351/14, EU:C:2016:447, paragraph 55); of 10 December 2020, J & S Service (C‑620/19, EU:C:2020:1011, paragraph 32); of 5 December 2024, Tallinna Kaubamaja Grupp and KIA Auto (C‑606/23, EU:C:2024:1004, paragraph 17); and of 19 June 2025, Hôtel Plaza (C‑419/24, EU:C:2025:464, paragraph 29). 17 See judgments of 24 November 2022, Cafpi and Aviva assurances (C‑691/21, EU:C:2022:926, paragraphs 30 to 32), and of 13 November 2025, Šiľarský (C‑197/24, EU:C:2025:876, paragraphs 35 to 37). 18 See Opinion of Advocate General Bobek in J & S Service (C‑620/19, EU:C:2020:649, point 61). 19 See judgment of 16 November 2023, BG (Grant of loans without approval) (C‑427/22, EU:C:2023:877, paragraph 43 and the case-law cited). 20 See, for example, judgments of 16 June 2016, Rodríguez Sánchez (C‑351/14, EU:C:2016:447, paragraph 63); of 30 January 2020, Generics (UK) and Others (C‑307/18, EU:C:2020:52, paragraph 28); and of 24 November 2022, Cafpi and Aviva assurances (C‑691/21, EU:C:2022:926, paragraphs 29 and 33); and order of 5 July 2024, EUROCASH1 (C‑788/23, EU:C:2024:589, paragraph 20. 21 More specifically, the concept referred to in Article 4(2) of Directive 2014/25. 22 See judgments in Dzodzi (paragraphs 34 and 36); of 28 March 1995, Kleinwort Benson (C‑346/93, EU:C:1995:85, paragraph 16); and of 13 October 2022, Baltijas Starptautiskā Akadēmija and Stockholm School of Economics in Riga (C‑164/21 and C‑318/21, EU:C:2022:785, paragraph 35). 23 See judgments of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 25), and of 7 November 2013, Romeo (C‑313/12, EU:C:2013:718, paragraphs 19 to 38). See, also, Opinion of Advocate General Cruz Villalón in Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2012:663, point 29). 24 Original version in Czech: ‘Tento zákon zapracovává příslušné předpisy Evropské unie a upravuje pravidla pro poskytování informací a dále upravuje podmínky práva svobodného přístupu k těmto informacím.’ 25 See point 31 of this Opinion. 26 See judgment of 21 December 2011, Cicala (C‑482/10, EU:C:2011:868, paragraph 27). 27 See order of 9 September 2014, Parva Investitsionna Banka and Others (C‑488/13, EU:C:2014:2191, paragraph 29). 28 See judgments of 28 March 1995, Kleinwort Benson (C‑346/93, EU:C:1995:85, paragraphs 23 and 24); of 17 July 1997, Leur-Bloem (C‑28/95, EU:C:1997:369, paragraph 27 et seq.); and of 17 July 1997, Giloy (C‑130/95, EU:C:1997:372, paragraph 24 et seq.). 29 See, to that effect, Opinions of Advocate General Cruz Villalón in Allianz Hungária Biztosító and Others (C‑32/11, EU:C:2012:663, point 29) and of Advocate General Pikamäe in Deutsche Post and Others (C‑203/18 and C‑374/18, EU:C:2019:502, point 49). 30 See, in that regard, Opinion of Advocate General Jacobs in Leur-Bloem (C‑28/95, EU:C:1996:332, point 75), and Opinion of Advocate General Tizzano in Adam (C‑267/99, EU:C:2001:190, point 34). See, also, point 32 of the Opinion of Advocate General Ruiz-Jarabo Colomer in Kofisa Italia (C‑1/99 and C‑226/99, EU:C:2000:498), according to which ‘… the Court should rule only in cases in which the factual and legislative context of the dispute is one contemplated by the Community rule’. 31 See judgment of 10 December 2020, J & S Service (C‑620/19, EU:C:2020:1011, paragraph 44 et seq.), in which the Court ruled out the existence of a direct and unconditional reference on the ground that the national legislation merely borrowed concepts from EU law without rendering applicable the legislative framework as a whole. In particular, the national legislature did not intend to extend the application of the General Data Protection Regulation (GDPR) beyond its own scope, but modified its subject matter and scope by adapting it to a different legal context. 32 See point 11 of this Opinion. 33 The circumstances of the present case bear some similarity to the situation in which a national legislature transposes, on its own initiative, provisions of EU law in order to ensure harmonisation of the rules applicable to purely domestic situations and those falling within the scope of EU law (see judgment of 21 November 2019, Deutsche Post and Others, C‑203/18 and C‑374/18, EU:C:2019:999, paragraph 40). 34 The approach adopted here broadly corresponds to that advocated by Advocate General Bobek in his Opinion in J & S Service (C‑620/19, EU:C:2020:649, point 60 et seq.). He rightly raised the question of whether such an interest of the European Union must be stated in all cases, or whether a differentiated assessment is required depending on the circumstances of each case. According to that approach, it is for the Court to determine specifically whether such an interest exists in each individual case. 35 See point 46 of this Opinion. 36 In its response to the Court’s request for clarification, the referring court explains that the purpose of the Law on free access to information is to guarantee the constitutional right of the public to information held by public authorities, regional or local authorities and other public institutions and public undertakings. Since 2016, it has also contained a general provision on open data, which extends its purpose to promoting the re-use of public sector information. 37 See point 30 of this Opinion. 38 Lenaerts, K., Gutman, K., Nowak, J.T., EU Procedural Law, 2nd edition, Oxford 2023, point 6.29, p. 259, explain that, by recognising its interpretative jurisdiction, the Court avoids the provisions of EU law in issue taking on a life of their own. That is precisely what, in my view, would be the inevitable consequence if the Court were, in the present case, to refrain from exercising its jurisdiction to interpret the concept of ‘public undertaking’, including with regard to the right of access. 39 See point 27 et seq. of this Opinion. 40 See point 66 et seq. of this Opinion. 41 See point 57 of this Opinion. 42 The Court has consistently held that it is particularly important, in order to satisfy the requirement of legal certainty, that individuals should have the benefit of a clear and precise legal situation enabling them to ascertain the full extent of their rights and duties and, where appropriate, to rely on them before the national courts (see judgments of 15 November 2001, Commission v Italy, C‑49/00, EU:C:2001:611, paragraph 22, and of 20 November 2003, Commission v France, C‑296/01, EU:C:2003:626, paragraph 55). 43 See judgments of 15 April 2010, Gualtieri v Commission (C‑485/08 P, EU:C:2010:188, paragraph 70), and of 20 November 2025, Siegfried PharmaChemikalien (C‑617/24, EU:C:2025:908, paragraph 40).