Opinion of the Economic and Social Committee on "Public sector information: a key resource for Europe - Green Paper on public sector information in the information society"

(1999/C 169/12)

On 22 January 1999 the Commission decided to consult the Economic and Social Committee, under Article 198 of the Treaty establishing the European Community, on "Public sector information: a key resource for Europe - Green Paper on public sector information in the information society".

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 13 April 1999. The rapporteur was Mr Hernández Bataller.

At its 363rd plenary session (meeting of 28 April 1999), the Economic and Social Committee adopted the following opinion, with 71 votes in favour and one abstention.

1. Introduction

1.1. Transparency in public business is nowadays clearly an inescapable feature of democracy, regardless of the political complexion of the government and the territorial structure of public authorities. Administrative transparency helps to give those authorities greater rigour and effectiveness in their day-to-day work.

1.2. Encouraging a policy of transparency is regarded throughout the European Union as essential in order to gain public confidence and support in the process of European integration.

1.3. Declaration No. 17 appended to the Final Act of the Treaty on European Union refers to the right of access to information, with a recommendation to the Commission that it submit to the Council a report on means of improving public access to the information held by the institutions.

1.4. The European Council meetings in Birmingham and Edinburgh in the course of 1992, again urged the Commission to continue its work on improving access to the informationavailable to the Community institutions. The Commission, for its part, adopted Communication 93/C 156/05(1) on public access to the institutions' documents, which contained the results of a study on citizens' access to documents in the individual Member States and concluded that better access to documents should be developed at Community level; this was followed up by Communication 93/C 166/04(2) on openness in the Community, setting out the basic principles governing access to documents.

1.5. On 6 December 1993 the Council and the Commission approved a code of conduct on public access to the documents of both institutions: this was a "code of conduct" in that it laid down the principles which should govern such access. As a result, the Council's new rules of procedure included certain rules on public access to documents, which were developed by Council Decision d93/731/EC(3) on public access to Council documents.

1.6. Article 191a of the Treaty of Amsterdam lays down that every citizen of the Union has the right of access to the documents of the European Parliament, the Council and the Commission, subject to certain principles and conditions(4).

2. Contents of the green paper

2.1. The green paper on public sector information in the information society is a result on the one hand of the process of making the Community institutions more transparent, and on the other of the need to provide the European information industry with adequate instruments to assist its development.

2.2. The green paper expresses the view that the Treaty establishing the European Community confers a number of rights on citizens of the Union. However, there are considerable practical difficulties hindering the exercise of those rights. These difficulties arise mainly from a lack of transparency vis-à-vis the public, firms and all levels of administration.

2.3. In the light of the differences between Member States in terms of information policy, and the fact that they could hinder the development of the European information industry, the green paper aims to spark a debate among economic and social operators on access to information and how to make the most of that information in an increasingly complex environment.

2.4. Access to public sector information is very important for enterprises in Europe, since the complete opening of the European market in telecommunications services and data, with greater freedom of access to administrative information and other data held by public authorities, will improve the competitiveness of enterprises. For example, the European Patents Office reckons that more than 18bn EUR are wasted each year on searches that have already been carried out.

2.5. The green paper maintains that links must be forged between the three main players in the information chain: the public sector, the private sector and the general public. Accessto public sector information must therefore be rapid and straightforward throughout Europe, to promote the competitiveness of European businesses that use public sector information in their countries.

2.6. The process of European integration itself calls for an exchange of information between national public sector bodies and for access for citizens and firms to such data and documents.

2.7. The divergences which the green paper detects between Member States affect the conditions for access to information, and practice and policy as regards dissemination and use, and could hamper the further growth of the European information industry.

2.7.1. The divergences noted by the green paper are in the following areas:

- the definition of the public sector and its scope,

- right of access,

- time, quantity and format,

- the pricing of public sector information,

- competition,

- protection of privacy,

- inventories and directories of public sector information,

- liability,

- appropriate Community action.

3. General comments

3.1. Preliminary considerations

3.1.1. The Economic and Social Committee shares the Commission's anxieties as expressed in the green paper, and supports

- the right to information, of which the right to access to documents is a part, constitutes a basic human right and forms part of the rights of European citizenship. The Committee takes the view that it should always be interpreted in the manner most favourable to the citizen, in accordance with democratic principles and rules,

- not only greater public sector (including Community) transparency vis-à-vis citizens but also the possibility of encouraging an environment more favourable to business initiative and growth - especially in small and medium-sized enterprises - in the Community as a whole, and an active employment policy.

3.1.2. The Committee considers that access to public sector information involves:

- accessibility of administrative archives and registers, meaning not just passively making them available but a duty of active promotion designed to facilitate the citizen's access to high-quality information in a practical form,

- equal participation by all operators in relation to sources of administrative information,

- the public obligation to protect freedom of access.

3.1.3. The development of the information society, and particularly of Internet, offers new opportunities that public sectors, including the Community, must exploit in their policies and procedures relating to information. With the help of Internet the right to information can be not merely formal, but also more easily reachable for a large majority of the citizens.

3.2. Definition of the public sector

3.2.1. It is difficult to exclude altogether any of the three criteria listed in the green paper (functional, legalist/institutional or financial approach). At all events, the sector should include any body, regardless of its legal form, which has been commissioned, by decision of a public authority and under its control, to carry out a service of public benefit, and which has for that purpose greater powers than would apply to transactions between individuals (5).

3.2.2. The public sector should include not only publicly-owned enterprises whose legal form is private but also private enterprises acting by virtue of administrative delegation or authorization, in managing that aspect of public services which excludes any commercial function, and the legislative and judicial authorities. These last should be included because of the regulatory effect of their earlier decisions, and legal acts with commercial implications for third parties (e.g. auctions by order of a court).

3.2.3. The Committee takes the view that, although it is difficult to exclude any of the three criteria listed in the green paper, the subjects concerned should in future be specified by means of a mixed institutional/functional list, which the Member States should draw up and present to the Commission in accordance with the principle of subsidiarity.

3.2.4. At all events, the Committee takes the view that transparency of access to public documentation should apply to all bodies with public sector legal status, at their various levels of administration (European, national, regional and local).

3.3. The existence of barriers at European level

3.3.1. The Committee considers that the current differing conditions for access to public sector information in the Member States create barriers at European level. Consequently, any physical or legal person who so requests should have the right - without having to prove a specific interest - of access to public sector information, since this is a right inherent in European citizenship which can help to raise the quality of life and ensure harmonious, balanced development of economic activities, together with possibilities for individual and collective participation in public life.

3.3.2. The Committee is aware that, despite the existence of the current barriers, a category of firms is developing which specialize in research for information by request and which operate on the market in an innovative way, making the most of existing technological development.

3.3.3. The Committee considers it important for there to be meticulous regulation of the right of access and exception to it, which should be subject to the following principles:

- the principle of limited exceptions: exceptions will have to be limited in number and defined in detail, thus avoiding ambiguities,

- the principle of restrictive interpretation: exceptions should be made only when they are strictly necessary, and they should never be interpreted in an extensive sense,

- the principle of proportionality: exceptions should only apply to that information or part of information that really is prejudicial,

- the principle of proof: it will not be enough for the public sector to give a reason for withholding information; it will also have to prove that such information is prejudicial,

- the principle of control: there must be stricter legal controls on the public sector denying the right of access to information; in particular, the use of conciliation bodies, such as the ombudsman, should be encouraged.

4. Large data bases (information on information)

The setting up of large data bases (providing information on what information is available) at European level could help European citizens and enterprises to find their way around the available public sector information. The Committee thinks it desirable to set up a "gateway" in the form of a Europe-wide "information tree" and the use of appropriate processes and technologies to preserve language diversity in Europe, which will be particularly useful to ordinary people and SMEs.

5. Pricing policies

5.1. The Committee is aware that the existence of different pricing policies for access to and use of public sector information in the Member States of the Community can create distortions of competition between the various economic operators and creates disparities in the opportunities available to citizens.

5.2. At all events, a distinction must be drawn between information essential to citizens, especially that which relates to the exercise of democratic rights - which could be provided free of charge or, where appropriate, at a greatly reduced price - and information for commercial purposes, the price of which, as it must be readily available, should be based on the costs of printing, updating, retrieval and transmission of data, for which invoices could be issued; or it should be a reasonable market price.

6. Activities of public sector bodies in the information market

6.1. Public sector bodies do not create unfair competition at European level when they perform an active dissemination function by publishing and circulating specific information with a view to making facts known, or by implementing public administration measures which can be regarded as activities connected with the civil service or public-interest services.

6.2. All information activities which do not derive from civil service tasks or the provision of public-interest services must be made subject to the provisions of the Treaty, and especially the provisions on competition, to the extent that the application of those provisions does not constitute a de facto or de jure obstacle to performance of the specific task entrusted to the public sector bodies concerned (6).

6.3. Any special or exclusive rights should be granted using public procedures based on objective, transparent and non-discriminatory criteria, and in all cases the activities of firms with special or exclusive rights must comply with the rules on state aids and, in general, with those on free competition.

6.4. In the case of information for which there is only one source, the Committee takes the view that it should be made available in a reasonable way to all economic operators and citizens by the public sector body holding it.

7. Data bases

The different copyright regimes relating to public sector information in Europe can cause barriers to the use of information, since:

- The public sector body may wish to maintain the integrity of the content and thus avoid the accusation of manipulating the information provided, since copyright relates to the data base and not on the selection or arrangement of its contents. This protection through copyright can apply equally to the material needed for the operation or consultation of certain data bases of the "thesaurus" type and indexing systems. Moreover, protection under the "sui generis" right relates to fields other than those covered by copyright, since the ownership belongs to the maker of the data base.

- Copyright can become a source of income for public sector bodies.

8. Respect for privacy

8.1. The current provisions on respect for privacy as regards data bases and telecommunications must be regarded as the minimum protection to be guaranteed by Community law and must be fully applicable to public sector bodies.

8.2. The Committee is in favour of a high level of protection for citizens' privacy, given that this is one of the foundations of a democratic society.

8.3. The Committee takes the view that access for commercial interests to personal data held by the public sector cannot be justified in any case which is not covered by the rules adopted, in particular, in the Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (Directive 95/46/EC)(7) and the Directive concerning the processing of personal data and the protection of privacy in the telecommunications sector (Directive 97/66/EC)(8).

9. Liability regimes

The existence of different liability regimes in the Member States can constitute an obstacle to access to, or exploitationof, public sector information, if activities are carried out in the establishment or head office of the public sector body and when an attempt is made to apply liability rules it turns out that different rules apply to the information intermediary because of his head office's location. This can have the effect that economic operators try to establish themselves where the level of protection is lowest.

10. Policies pursued by the EU institutions in the field of access

The Committee regards as inadequate the policies so far pursued by the institutions on the scope of access to and exploitation of information, and thinks it necessary to go further in the direction taken by the Decisions already adopted by the Council and the Commission and initiated by this green paper, in order to guarantee maximum transparency for citizens and the competitiveness of European firms. In the Committee's view the very minimum to be considered should contain the principles set out in point 3.3.3.

11. Priority actions at European level

11.1. Given the need for an effective measure to be adopted and the added value which it could provide at European level, the Committee feels that priority should be given to adopting a legal instrument with obligatory force to regulate access to public sector information and its free circulation in the Community, in accordance with the principles of proportionality and subsidiarity.

11.2. The Committee also takes the view that other, complementary, measures could be adopted, such as an exchange of information among public sector bodies with a view to sharing experience, running campaigns to train citizens and make them more aware of existing information sources, and carrying out pilot projects to reveal and co-ordinate the different sources.

Brussels, 28 April 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

(1) COM(93) 191 final: Public Access to the Institutions' Documents - Communication to the Council, the Parliament and the Economic and Social Committee

(2) OJ C 166, 17.06.1993, p. 4: Communication to the Council, the Parliament and the Economic and Social Committee: Openness in the Community.

(3) OJ L 340, 31.12.1993, p. 43-44: Council Decision of 20 December 1993 on public access to Council documents.

(4) Article 191a of the Treaty, adopted at Amsterdam:

1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 189b within two years of the entry into force of the Treaty of Amsterdam.

3. Each institution referred to above shall elaborate in its own Rules of Procedure specific provisions regarding access to its documents.

(5) ECJ: Case C-188/89 Section 20 ("Foster Judgment").

(6) Art. 90(2) of the EC Treaty.

(7) OJ L 281, 23.11.1995, p. 31-50; Directive 95/46/EC of the European Parliament and of the Council of 24.10.1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

(8) OJ L 024, 30.1.1998, p. 1-8; Directive 97/66/EC of the European Parliament and of the Council of 15.12.1997 concerning the processing of personal data and the protection of privacy in the telecommunications sector.