COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a directive on the re-use and commercial exploitation of public sector information

1- BACKGROUND

Date of transmission of the proposal to the EP and the Council (document COM(2002) 207 final - 2002/0123 COD): // 26 June 2002

Date of the opinion of the European Economic and Social Committee: // 11 December 2002

Date of the opinion of the Committee of the Regions // 21 November 2002

Date of the opinion of the European Parliament, first reading: // 12 February 2003

Date of transmission of the amended proposal: // 17 March 2003.

Date of adoption of the common position (by unanimity): // 26 May 2003.

2- OBJECTIVE OF THE COMMISSION PROPOSAL

The proposal aims at a minimum harmonisation of the rules for the re-use of public sector information in the European Union. Public sector information (e.g. geographical information, business information, traffic information) is an important economic asset. It provides raw material for new digital products and services and is a key data input for e-commerce trading. Information held by the public sector can become a strong asset for new wireless applications.

The rules for the re-use of this information resource vary widely throughout the Union. This hampers the development of added-value cross-border services that use this information as an input. A European framework for the re-use of public sector information will increase certainty and thus foster investments in creativity and innovation in the area of content provision and in other sectors.

3- COMMENTS ON THE COMMON POSITION

3.1. General Remarks

The Commission notes that the Council adopted by unanimity a common position that largely reflects the main orientations of the Commission proposal. Although a number of changes were introduced, the text maintained all the essential elements of the amended Commission proposal. The re-ordering of some of the articles has improved the logic of the text.

3.2. Response to Parliament's amendments adopted at first reading

Parliament adopted 23 amendments, 10 of which could be supported by the Commission and 8 of which could be supported in part or in principle.

3.2.1. Amendments accepted by the Commission and included in the common position

The common position has taken up the following amendments by Parliament, some of them as formulated by Parliament, others in a modified form:

- amendment 3 further clarifies what types of information are collected by the public sector. This has been incorporated in recital 4.

- The last sentence of amendment 10 states that public administrations should promote the re-use of information made available by them. This part of the amendment was endorsed by the Commission and has been taken up in the common position (last sentence of recital 9).

- amendment 13 changes documents 'held by' public service broadcasters which are excluded from the scope of the directive into documents 'within the power of disposal' of public broadcasters. This amendment loses its relevance in view of the explanation of the term 'held by' in recital 11 of the text of the common position.

- amendment 14 clarifies that information which constitutes trade or business secrets falls outside the scope of the directive. This was already implicit in the Commission proposal that limited itself to generally accessible information. The Council has reformulated this criterion in article 1.2 (c) of the common position. This provision states that the directive shall not apply to documents 'which are excluded from access by virtue of the access regimes in the Member States, including on the grounds of [ ....] statistical or commercial confidentiality'.

- The first part of amendment 21 (article 5 paragraph 3 of the Commission proposal, article 4 paragraph 3 of the common position) relates to the obligation for public sector bodies to provide information on the identity of the third party rightholder. It limits this obligation to cases where the public sector body is able to provide such information.

- amendment 26 (article 7 paragraph 3 of the Commission proposal, article 9 paragraph 2 of the common position) takes out the words 'where re-use is allowed'.

- amendment 32 (article 12, paragraph 2) links the review of the directive more clearly to its objectives. This is also the aim of the revision of this article by Council.

- amendment 34 aligns the wording of recital 14 with the wording of article 6.

3.2.2. Amendments accepted by the Commission and not included in the common position

The common position did not include a number of other amendments endorsed by the Commission, the most important of which are amendments 24 and 31. In the view of the Commission the incorporation of amendments 24 and 31 in the text, would constitute a considerable improvement of the directive.

Amendment 24 (article 6) gives the right to an applicant who considers that charges made by the public sector exceed those allowed under the charging article of the directive to request a review of the charges.

Amendment 31 (article 9 of the Commission proposal, article 8 of the common position) establishes an obligation for Member States to make available lists of main content assets held by public sector bodies.

Amendment 1, changes the words 'document' and 'documents' into 'information' throughout the proposal for a directive. Although the Commission could accept this modification proposed by Parliament, it would like to stress there is no material difference between the two versions as long as the broad definition of 'document' or 'information' proposed by the Commission is maintained.

Furthermore the Council compromise text has not taken up a few other amendments endorsed (in part or in principle) by the Commission. The first part of amendment 18 deals with formats that are not dependent on the use of specific software. Amendment 20 proposes to take into account the purpose of the re-use in determining the timeframes that are reasonable for treating requests for re-use. Other amendments that were not taken up are amendments 4, 7, 12, 27, 28.

3.3. New provisions introduced by the Council

The following main new elements have been introduced by the Council in its common position:

As indicated above, the Council has replaced in article 1 the notion that the directive applies to information that is 'generally accessible' by the notion that the directive shall not apply to 'documents which are excluded from access by virtue of the access regimes in the Member States'. This is a technical improvement on the original text.

In article 1.2(e), the Council has extended the exception for educational and research establishments to organisations for the transfer of research results. Given the limited impact of this addition, the Commission can accept it.

Furthermore the Council has made explicit (article 1.3) that the directive builds on the existing access regimes in the Member States and does not change the rules for access to documents. This notion was already at the basis of the Commission proposal.

In article 4 (article 5 of the Commission proposal), the Council has made provision for the case that a licence is needed and has extended the original time-frames foreseen in the Commission proposal, in cases no time-limits are foreseen by the access regimes (paragraph 4.2). In article 4.5, the Council has made explicit that public sector bodies not covered by the directive in virtue of the exceptions in article 1, do not have to comply with the requirements of this article.

In article 5 (article 4 of the Commission proposal), the Council has taken up a useful provision for cases in which extracts (for example part of a database) are requested by a potential re-user.

In article 6, the Council has replaced the notion that the burden of proof that charges are cost-oriented shall lie with the public sector body charging for the re-use of the information, by a specification of some guidelines for the cost-calculation. Although the latter aspect is a helpful addition, it would have been preferable to also maintain the original notion of the burden of proof that should lie with the public sector bodies, and in addition to take up amendment 24 of Parliament (see above).

In article 7 (article 8 of the Commission proposal), the Council has made a distinction between typical cases (in these cases any applicable conditions and standard charges shall be pre-established and published) and atypical cases (in these cases public sector bodies shall also indicate which factors will be taken into account in the calculation of charges). This distinction is acceptable, given that it is impossible to have an exhaustive overview of charges for all possible and imaginable situations.

In article 8 (article 9 of the Commission proposal) the Council has introduced the notion (implicit in the Commission proposal) that public sector bodies may impose conditions on re-use, where appropriate through a licence. It has completed this provision by the valuable notion that these conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition. Furthermore, the article now obliges Member States to encourage all public sector bodies to use the standard licences they will make available.

In article 10, the Council has foreseen a transitional period of a maximum of 5 years for ending existing exclusive arrangements.

In addition, the Council has introduced a number of clarifications in the recitals.

4- CONCLUSION

The Commission notes that the Council has reached unanimity and delivers a favourable opinion on the common position as a whole. In several respects, the common position clarifies the provisions of the Commission proposal. A further improvement of the text could be achieved by the incorporation of the amendments of Parliament endorsed by the Commission and in particular the amendments relating to the charging article and the lists of main content assets held by public sector bodies.