[pic] | EUROPEAN COMMISSION |

Brussels, 4.4.2011

COM(2011) 162 final

2011/0070 (APP)

Proposal for a

COUNCIL REGULATION

on electronic publication of the Official Journal of the European Union

EXPLANATORY MEMORANDUM

CONTEXT OF THE PROPOSAL

General context

The Official Journal of the European Union ensures official publication of the legislation and other acts of the European Union. It has been published on paper since 1958 and, since 1998, it has also been available on the Internet. In recent years, an increasing number of people have been consulting the Official Journal of the European Union on the Internet because it is convenient and quick, while the number of subscriptions for the printed edition has been declining. However, as the printed edition is currently considered to be the only valid and legally binding publication, for the time being legal rights cannot be claimed and obligations cannot be enforced based on the electronic version of the Official Journal of the European Union .

This was clearly stated by the Court of Justice of the European Union in the Skoma-Lux case[1]. According to the Court, ‘ ... making the legislation available by such means (n.n. on the Internet) does not equate to a valid publication in the Official Journal of the European Union in the absence of any rules in that regard in Community law ’.

Existing provisions in the area of the proposal

Article 297 of the Treaty on the Functioning of the European Union provides that legislative acts and non-legislative acts adopted in the form of regulations or directives, which are addressed to all Member States, or in the form of decisions, which do not specify to whom they are addressed, are to be published in the Official Journal of the European Union . Legislative acts adopted under the ordinary legislative procedure must be signed by the President of the European Parliament and by the President of the Council, while the other acts must be signed by the President(s) of the institution(s) which adopted them. These acts enter into force on the day stipulated in their text or on the twentieth day following that of their publication.

Decision 2009/496/EC, Euratom [2] sets out in more detail the way in which institutions fulfil their obligations to publish legislative texts. An interinstitutional office – the Publications Office – is entrusted with the publication of the Official Journal of the European Union and guarantees its authenticity.

Objectives of the proposal

The proposal aims at broadening access to European Union law and enabling everyone (be they professionals in law or members of the general public) to rely on the electronic edition of the Official Journal of the European Union as being official and authentic. Should the electronic publication of the Official Journal of the European Union be acknowledged as valid publication, all European Union citizens could have virtually simultaneous access to European Union law, immediately after publication and in a more economical manner since consultation of the electronic publication would be free of charge. Also, access for people living in geographically less accessible regions in Europe would also be facilitated. Furthermore, enhanced access is supported by the objectives of the ‘ EUROPE 2020 strategy for smart, sustainable and inclusive growth’[3] that aims at ensuring broadband access for all by 2013.

The proposal also aims to enhance legal certainty compared to the current situation where the online publication serves for information purposes only, as rights could be enjoyed and obligations enforced based on their publication in the authentic electronic version of the Official Journal of the European Union .

Consistency with other policies and objectives of the Union

The proposal is fully in line with the policies of the Union and in particular with the flagship initiative ‘A Digital Agenda for Europe’[4] presented in the context of the EUROPE 2020 strategy for smart, sustainable and inclusive growth. The Digital Agenda aims at maximising the economic and social benefits of information technologies and highlights the role of public authorities in promoting the digital market. Within this context, access to online legal content stimulates the development of the digital single market since the public sector information thus made available would lead to the setting-up of innovative online services.

The proposal is also consistent with the objectives of the European eGovernment Action Plan 2011-2015[5], according to which Member States and the Commission should provide online access to information on government laws and regulations, policies and finances.

RESULTS OF INFORMAL CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Consultation of the interested parties

European institutions and bodies are represented in the Management Committee of the Publications Office, which is responsible for overseeing the strategic development of the Publications Office’s activity. Within this forum, the interested institutions and bodies have considered the matter and expressed their support for establishing an authentic electronic edition of the Official Journal of the European Union .

Member States have also been consulted on the question of legally valid electronic publication of the Official Journal of the European Union through the Council’s e-Law Working Party. The Secretariat General of the Commission transmitted a non-paper to the Council on 30 July 2010 which was discussed at two meetings of the e-Law Working Party on 21 September and 26 October 2010. The Member States’ comments showed strong support for a legally valid electronic publication[6], but were more divided with regard to the continued legal value of the paper version; observations were made regarding:

- Opting for exclusively electronic publication of the Official Journal of the European Union , possibly preceded by a transitional period of parallel publishing on paper and in electronic form;

- The cost of printing the Official Journal of the European Union , in the event of opting for parallel dissemination through printed and electronic editions;

- The risk of discrepancies between the printed and electronic editions and the need to establish clear rules on handling inconsistencies or on the prevailing version;

- The limited role the printed edition may play in disseminating EU legislation to people who would not have the means to access the electronic edition.

In preparing this proposal the Commission has taken into consideration all the comments expressed. Initially, parallel publication on paper and in electronic form, which would have equal legal force, was preferred, since it was considered to secure the broadest possible access to EU law for European citizens. However, the practical experience of the Member States suggested that the benefits would be marginal and would not offset the increased complexity. It was also pointed out that people living in geographically less accessible areas experience difficulties or delays in getting a printed edition and that their access to EU law would be facilitated by an authentic electronic edition .

The proposal for a Regulation provides that the Official Journal of the European Union is to be published in an electronic form that produces legal effects. An electronic publication is consistent with the target set by the Europe 2020 Strategy and the flagship initiative A Digital Agenda for Europe, according to which broadband access should be ensured for all by 2013. The proposed system balances the concerns for both accessibility and simplicity:

- On the one hand, the valid electronic publication allows for broader dissemination than the printed edition. During the last few years, there has been an observable drop in the number of subscriptions for the Official Journal of the European Union, while Internet usage in the European Union has been expanding - according to Eurostat, 70% of households in 2010 and 94% of enterprises in 2009 had access to Internet. Furthermore, consultation of the electronic edition of the Official Journal of the European Union would be free of charge and would compare favourably with the printed publication, for which printing and shipping costs had to be levied from the public. Nonetheless, a safeguard is provided for people with disabilities who can access the Official Journal of the European Union in a specific electronic format and for persons who cannot, for any other reason, access the electronic publication, as it will always be possible to obtain a paper version ‘on demand’ but without legal value (i.e. for information purposes only) either through the Publications Office or as a print-out from the Internet.

- On the other hand, the system is simpler since potentially complex rules on handling discrepancies between equally authentic printed and electronic editions are no longer required.

Assessment of the likely impact of the proposal

An analysis has been conducted by the Commission to assess three options with regard to publication of the Official Journal of the European Union :

- Option 1: Maintaining the status quo, where only the paper version constitutes valid publication and the online version of the Official Journal of the European Union serves for information purposes only;

- Option 2: exclusive online publication of the Official Journal of the European Union ;

- Option 3: simultaneous publication on paper and online that would have equal legal value and effectiveness.

Providing for the legal value of the electronic edition will have significant benefits, as:

- access to EU legislation is broadened, made easier and immediate;

- access to the electronic edition is free of charge and possible at any time;

- such electronic publication would be in line with the Digital Agenda priorities agreed among the EU institutions and would stimulate an increase in take-up of online services.

LEGAL ELEMENTS OF THE PROPOSAL

Main provisions of the proposal

The proposal provides that electronic publication would equate to valid publication of the Official Journal of the European Union . However, the printed edition would suffice to ensure the legal effects of publication in technically-driven exceptional and temporary cases of unforeseen disruption of electronic publication (e.g. cyber-attacks, unforeseen equipment malfunctions) that last for more than one day. The edition of the Official Journal of the European Union printed in such circumstances is to be published in electronic form as soon as the technical system is restored. The printed edition is to provide the date of publication, but the subsequent electronic edition would prevail in case of differences.

The proposal also deals with the technical requirements whereby electronic publication equates to valid publication and establishes the competences of the Publications Office in this area.

Legal basis

Article 352 of the Treaty on the Functioning of the European Union.

Proportionality principle

The proposal’s scope is limited to electronic publication of the Official Journal of the European Union and the technical conditions under which it can equate to valid publication.

Choice of instruments

A Regulation is the only appropriate instrument as it is directly applicable in all Member States. European citizens should have equal access to EU law and therefore access to the electronic edition of the Official Journal of the European Union should be ensured in the same manner and under the same conditions for all European citizens.

BUDGETARY IMPLICATIONS

Providing for legally valid publication of the Official Journal of the European Union in electronic form has no budgetary implication.

However, the technical infrastructure supporting electronic publication requires IT-related investments. Under the administrative autonomy, expenditure of EUR 38 000 was incurred in 2009 for setting up and testing the technical system prior to the publication of the Official Journal of the European Union in electronic form as authentic. Further development investments and the maintenance and system-running costs are to be borne by all institutions since the obligation to publish legislative texts rests with them. The method for calculation of the repartition key is based on the number of OJ L and C pages produced for each institution in year n-2. The key for 2011 has been set up on the basis of the 2009 figures:

- European Commission: 47.64%;

- Council of the European Union: 21.96%;

- European Parliament: 21.94%;

- Economic and Social Committee: 3.29%;

- Court of Justice of the European Union: 3.17%;

- Court of Auditors: 1.25%;

- Committee of the Regions: 0.75%.

Budgetary provisions to be made in line with this repartition key.

2011/0070 (APP)

Proposal for a

COUNCIL REGULATION

on electronic publication of the Official Journal of the European Union

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 352 thereof,

Having regard to the proposal from the European Commission,

Having regard to the consent of the European Parliament[7],

Acting in accordance with a special legislative procedure,

Whereas:

1. Article 297 of the Treaty deals with the publication in the Official Journal of the European Union and entry into force of the legal acts of the Union.

2. The printed edition of the Official Journal of the European Union , in all official languages of the Union, is at present the only legally binding publication, although it is also made available online.

3. Decision 2009/496/EC, Euratom of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions of 26 June 2009 on the organisation and operation of the Publications Office of the European Union[8] ensures that the Publications Office enables the institutions to fulfil their obligations to publish legislative texts.

4. It follows from the judgment of the Court of Justice of the European Union in Case C-161/06 Skoma-Lux sro v Celni etc [9] , that legal acts of the Union are not enforceable against individuals if they have not been properly published in the Official Journal of the European Union and that making such acts available on the Internet does not equate to valid publication in the Official Journal of the European Union in the absence of any rules in that regard in Union law.

5. If publication in the Official Journal of the European Union in electronic form were to constitute valid publication, faster and more economical access to Union law would be possible.

6. The Commission Communication on A Digital Agenda for Europe[10] highlights that access to online legal content favours the development of a digital internal market, which leads to economic and social benefits.

7. Rules ensuring the authenticity, integrity and inalterability of the electronic publication of the Official Journal of the European Union should therefore be laid down.

8. Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community framework for electronic signatures[11] establishes the legal effects of electronic signatures as a means for authentication. For the purposes of ensuring the integrity, authenticity and inalterability of the electronic edition of the Official Journal of the European Union, an advanced electronic signature based on a qualified certificate and created by a secure-signature-creation device in accordance with that Directive provides sufficient guarantees to the public.

9. Access to the EUR-Lex web site is to be ensured with respect to the commitments for the protection of persons with disabilities in accordance with Council Decision 2010/48/EC of 26 November 2009 concerning the conclusion, by the European Community, of the United Nations Convention on the Rights of Persons with Disabilities[12].

10. In accordance with the principle of proportionality, as set out in Article 5 of the Treaty on European Union, this Regulation does not go beyond what is necessary in order to achieve the objective of enabling all European citizens to rely on the electronic publication of the Official Journal of the European Union , as its scope is limited to making such publication authentic, in the same way as the printed publication is today.

11. The Treaty does not provide, for the adoption of this Regulation, powers other than those under Article 352,

HAS ADOPTED THIS REGULATION:

Article 1

12. The Official Journal of the European Union shall be published in electronic form, in the official languages of the Union, in accordance with this Regulation.

13. The Official Journal of the European Union published in electronic form, hereinafter the electronic edition of the Official Journal , shall be authentic and shall produce legal effects.

Article 2

14. T he electronic edition of the Official Journal shall bear an advanced electronic signature based on a qualified certificate and created with a secure-signature-creation device, in accordance with Directive 1999/93/EC. The qualified certificate and renewals thereof shall be published on the EUR-Lex web site in order to make it possible for the public to verify the advanced electronic signature and the authentic character of the electronic edition of the Official Journal .

15. The electronic edition of the Official Journal shall display information regarding its publication date.

16. The electronic edition of the Official Journal shall be made available to the public on the EUR-Lex web site for an unlimited period. No charge shall be made for its consultation.

17. The EUR-Lex web site shall be accessible to all users. The Official Journal of the European Union shall also be accessible to persons with disabilities in an alternative electronic format which shall not produce legal effects. The alternative version shall be also available in archives.

Article 3

18. The Publications Office may continue to print the Official Journal of the European Union . Printed copies shall not be authentic and shall not produce legal effects, without prejudice to Article 4(2).

19. A fee amounting to the printing and shipping costs shall be charged for printed copies of the Official Journal of the European Union .

Article 4

20. Where the electronic edition of the Official Journal is inaccessible due to unforeseen and exceptional disruption of the information system in the Publications Office, access thereto shall be restored as soon as possible.

21. If access cannot be restored within one working day, the Official Journal of the European Union shall be published in a printed edition which shall produce legal effects. The corresponding electronic edition of the Official Journal shall be published as soon as the information system is restored.

22. The date of publication of legal acts published in accordance with paragraph 2 shall be the date of publication of the printed edition. In case of discrepancies between the electronic edition of the Official Journal and the printed edition published in accordance with paragraph 2, the former shall prevail.

Article 5

23. With regard to the electronic edition of the Official Journal , the Publications Office shall have competence for:

24. publishing the electronic edition of the Official Journal and guaranteeing its authenticity;

25. implementing, managing and maintaining the information system producing the electronic edition, and upgrading that system in line with future technical developments;

26. implementing and extending the technical facilities to ensure the accessibility for all users of the electronic edition of the Official Journal;

27. setting up internal security and access rules with regard to the information system producing the electronic edition of the Official Journal ;

28. preserving and archiving the electronic files and handling them in line with future technological developments.

29. The Publications Office shall exercise the competences set out in paragraph 1 in accordance with Decision 2009/496/EC, Euratom.

Article 6

This Regulation shall enter into force on 1 January 2012.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at […],

For the Council

The President

LEGISLATIVE FINANCIAL STATEMENT FOR PROPOSALS

1. FRAMEWORK OF THE PROPOSAL/INITIATIVE

1.1. Title of the proposal/initiative

1.2. Policy area(s) concerned in the ABM/ABB structure

1.3. Nature of the proposal/initiative

1.4. Objective(s)

1.5. Grounds for the proposal/initiative

1.6. Duration and financial impact

1.7. Management method(s) envisaged

2. MANAGEMENT MEASURES

2.1. Monitoring and reporting rules

2.2. Management and control system

2.3. Measures to prevent fraud and irregularities

3. ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE

3.1. Heading(s) of the multiannual financial framework and expenditure budget line(s) affected

3.2. Estimated impact on expenditure

3.2.1. Summary of estimated impact on expenditure

3.2.2. Estimated impact on operational appropriations

3.2.3. Estimated impact on appropriations of an administrative nature

3.2.4. Compatibility with the current multiannual financial framework

3.2.5. Third-party participation in financing

3.3. Estimated impact on revenue

LEGISLATIVE FINANCIAL STATEMENT FOR PROPOSALS

FRAMEWORK OF THE PROPOSAL/INITIATIVE

Title of the proposal/initiative

Proposal for a Council Regulation on electronic publication of the Official Journal of the European Union

Policy area(s) concerned in the ABM/ABB structure

Not applicable, as the proposal concerns the administrative expenditure of the Commission and of the other institutions that need to publish their adopted acts in the Official Journal of the European Union .

Nature of the proposal/initiative

Not applicable.

Objectives

The European Union's multiannual strategic objective(s) targeted by the proposal/initiative

The proposal contributes to the objective of developing the single market for online content as provided for by the flagship initiative ‘A Digital Agenda for Europe’, presented in the context of the EUROPE 2020 Strategy for smart, sustainable and inclusive growth.

Specific objective(s) and ABM/ABB activity(ies) concerned

Specific objective

To promote publications and online information services to citizens, businesses and target audiences (law professions).

ABM/ABB activity(ies) concerned

Not applicable.

Expected result(s) and impact

Specify the effects which the proposal/initiative should have on the beneficiaries/groups targeted.

The proposal targets the EU citizens and businesses that should benefit by having free, immediate and simplified access to the authentic publication of European Union legislation.

Indicators of results and impact

Specify the indicators for monitoring implementation of the proposal/initiative.

The result indicators to be monitored during the implementation of the proposal are:

- number of 'hits' to the legally valid electronic edition of the Official Journal of the European Union ;

- number of orders for printed editions as compared to the number of subscriptions when the electronic publication had no legal value;

- number of complaints made to the Publications Office related to difficulties in accessing the legally valid electronic edition of the Official Journal of the European Union for reasons related to the information system in the Publications Office.

Grounds for the proposal/initiative

Requirement(s) to be met in the short or long term

The proposal aims to enhance legal certainty by making it possible for rights and obligations under European Union law to be claimed or enforced based on publication in the authentic electronic edition of the Official Journal of the European Union . Access to the legally valid electronic publication should be secured at the time of the entry into force of the proposal.

Added value of EU involvement

Since the proposal concerns the form of publication of European Union law, it is only at the European Union level that appropriate action could be taken. Furthermore, the choice of instrument reflects the need to ensure equal conditions of access for all European Union citizens.

Lessons learned from similar experiences in the past

Previously, the Official Journal of the European Union has been published in electronic form for information purposes only. A subsequent growing trend towards consultation of its electronic edition is in keeping with the main thrust of the proposal.

Coherence and possible synergy with other relevant instruments

Not applicable.

Duration and financial impact

( Proposal/initiative of limited duration

x Proposal/initiative of unlimited duration

- Implementation with a start-up period from YYYY to YYYY,

- followed by full-scale operation.

Management mode(s) envisaged

x Centralised direct management by the Publications Office on behalf of the Institutions represented in the PO's management committee, see §2.1.

( Centralised indirect management with the delegation of implementation tasks

( Shared management with the Member States

( Decentralised management with third countries

( Joint management with international organisations

Comments

Not applicable

MANAGEMENT MEASURES

Monitoring and reporting rules

Specify frequency and conditions.

It is proposed that the Publications Office would attend to the electronic publication of the Official Journal of the European Union in accordance with Decision 2009/496/EC, Euratom , and, consequently, with respect to the monitoring and reporting rules provided by that Decision.

Management and control system

Risk(s) identified

There is a risk of technical disruption occurring in the Publications Office' information system. Its impact may consist in rendering the electronic edition inaccessible. In such cases, if access can not be restored in one working day, the paper edition would equate to valid publication.

Another identified risk is security-related and, to counter it, the Publications Office is required to set up, in accordance with Decision 2009/496/EC, Euratom , internal security and access rules for the information system.

Control method(s) envisaged

Not applicable.

Measures to prevent fraud and irregularities

Specify existing or envisaged prevention and protection measures.

Not applicable.

ESTIMATED FINANCIAL IMPACT OF THE PROPOSAL/INITIATIVE

Heading(s) of the multiannual financial framework and expenditure budget line(s) affected

- Existing expenditure budget lines

Heading of multiannual financial framework | Budget line | Type of expenditure | Contribution |

Number [Description………………………...……….] | DA/NDA ([13]) | from EFTA[14] countries | from candidate countries[15] | from third countries | within the meaning of Article 18(1)(aa) of the Financial Regulation |

5 | Commission: 26011101 [Official Journal (L and C)] European Parliament: 3240 [Official Journal] Council: 2211 [Official Journal] Court of Justice: 2740 [Official Journal] Court of Auditors: 2740 [Official Journal] Economic and Social Committee ESC: 2604 [Official Journal] Committee of the Regions: 2604 [Official Journal] | NDA | NO | NO | NO | NO |

Estimated impact on expenditure

Summary of estimated impact on expenditure

EUR million (to three decimal places)

Heading of multiannual financial framework: | 5 | " Administrative expenditure " |

EUR million (to three decimal places)

Year 2011 | Year 2012 | Year 2013 | Year 2014 | … insert as many columns as necessary in order to reflect the duration of the impact (see point 1.6) |

- Article 502 | p.m. | p.m. |p.m. |p.m. |p.m. | | | | |For miscellaneous assigned revenue, specify the budget expenditure line(s) affected.

26011101

Specify the method for calculating the impact on revenue.

Currently, the source of revenue is given by subscriptions and orders for the printed edition of the Official Journal of the European Union . Once the electronic edition is the only publication with legal value, the number of subscriptions is expected to decrease and approach zero.

[1] Judgment of 11 December 2007 in Case C-161/06, Skoma-Lux sro v Celní Y[pic]editelství Olomouc ( ECR 2007, p. I-10841).

[2] Decision 2009/496/EC, Euratom of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the European Economic andse C-161/06, Skoma-Lux sro v Celní ředitelství Olomouc (ECR 2007, p. I-10841).

[3] Decision 2009/496/EC, Euratom of the European Parliament, the Council, the Commission, the Court of Justice, the Court of Auditors, the European Economic and Social Committee and the Committee of the Regions on the organisation and operation of the Publications Office of the European Union (OJ L 168, 30.6.2009, p. 41) .

[4] COM(2010) 2020 final; 3.3.2010.

[5] COM(2010) 245 final/2; 26.8.2010.

[6] COM(2010) 743; 15.12. 2010.

[7] Conclusions of the e-Law Working Party meeting of 26 October 2010.

[8] OJ C […], […], p. […].

[9] OJ L 168, 30.06.2009, p. 41.

[10] ECR 2007, p. I-10841.

[11] COM/2010/245 final/2.

[12] OJ L 13, 19.1.2000, p. 12.

[13] OJ L 23, 27.1.2010, p. 35.

[14] DA= Differentiated appropriations / DNA= Non-Differentiated Appropriations

[15] EFTA: European Free Trade Association.

[16] Candidate countries and, where applicable, potential candidate countries from the Western Balkans.

[17] As regards traditional own resources (customs duties, sugar levies), the amounts indicated must be net amounts, i.e. gross amounts after deduction of 25% for collection costs.