EUROPEAN COMMISSION Brussels,25.4.2018 SWD(2018) 127 final COMMISSION STAFF WORKING DOCUMENT



IMPACT ASSESSMENT

Accompanying the document Proposal for a Directive of the European Parliament and of the Council on the re-use of public sector information {COM(2018) 234 final}



{SWD(2018) 128 final}





Table of Contents 1.Introduction: Political and legal context 1.1.Policy context 1.2.Legal context 1.2.1. Data protection legislation 1.2.2. Other relevant legal instruments 1.3.Economic context 2.Problem definition 2.1.Ensuring the success of the open data policy in the evolving digital environment 2.2.What are the problems and the problem drivers? 2.2.1. Contextual drivers 2.2.2. Problem area No. 1: Insufficient use of methods for access and re-use of dynamic data by machines 2.2.3. Problem area No. 2: Market entry barriers and fragmentation 2.2.4. Problem area No. 3: Insufficient availability of public and publicly funded data for re-use 2.2.5. Problem area No. 4: Distortion of competition in the internal market 2.3.Who is affected and in what ways? 2.3.1. Public sector 2.3.2. Private sector, in particular SMEs 2.4.How will the problem evolve?

2.5.REFIT considerations 2.6.Access to private sector data for public interest purposes 3.Why should the EU act?24 3.1.Legal basis24 3.2.Subsidiarity: Necessity of EU action24 3.3.Subsidiarity: Added value of EU action25 4.Objectives: What is to be achieved?25 4.1.General objectives25 4.2.Specific objectives26 5.What are the available policy options?27 5.1.What is the baseline for assessing options?27 5.2.Description of the policy options27 5.3.Options discarded at an early stage33 6.What are the impacts of the policy options?33 6.1.Economic and data-specific impacts of the retained options33 6.1.1. Baseline scenario 35 6.1.2. Policy Option 1 - Packaged solution: lower intensity of regulatory intervention 36 6.1.3. Policy Option 2 – Packaged solution: higher intensity regulatory intervention 40 6.2.Impact on SMEs42 6.3.Social and environmental impacts43

6.3.1. Baseline scenario 43 6.3.2. Policy Option 1 - Packaged solution: lower intensity regulatory intervention 43 6.3.3. Policy Option 2 – Packaged solution: higher intensity regulatory intervention 44 6.4.Member States' and stakeholders' views44 7.How do the options compare?46 8.Preferred option48 8.1.Estimated impact of the preferred option49 8.2.REFIT (simplification and improved efficiency)50 9.How will impacts be monitored and evaluated?51 Annex 1: Procedural information55 Annex 2: Consultation on PSI Directive review60 Annex 3: Visualisation of the views expressed by stakeholders in the Public Online Consultation on the Review of the PSI Directive69 Annex 4: Who is affected and how?74 Annex 5: Evaluation Report80 Annex 6: The Evolution of the Directive on the Re-Use of Public Sector Information81 Annex 7: Open Data in an International Context83 Annex 8: Analytical methods87 Annex 9: Success Stories on Open Data97 1.Introduction: Political and legal context

This impact assessment accompanies the proposal for a review of the Directive of the European Parliament and of the Council amending Directive 2003/98/EC on the re-use of public sector information (PSI Directive). The Directive was adopted by the EU legislators in order to harmonise the basic re-use conditions across the EU and to remove major barriers to re-use in the internal market, thus ensuring a competitive environment conducive to the development of a market for information-based products and services. The Directive introduced provisions on non-discrimination, charging, exclusive arrangements, transparency, licensing and practical tools facilitating the re-use of public sector documents. The Directive was revised in 2013. The modifications introduced an obligation to allow the re-use of public data, access to which is granted under national legislation, expanded the scope of the Directive to include documents from public libraries, museums and archives, established a default charging rule limited to the marginal cost for reproduction, provision and dissemination of the information, and obliged public sector bodies to be more transparent about the charging rules and conditions they apply. The amending Directive was implemented into national legislation by all 28 EU Member States. Article 13 of the Directive calls on the European Commission to carry out a review of the application of the Directive and to communicate the results, together with any proposal for amendments, before 18 July 2018. At the same time, this review is an important part of the initiative on accessibility and re-use of public and publicly funded data announced by the Mid-Term Review of the Digital Single Market (DSM) strategy. In the last years, the Commission took a series of key measures to improve the framework conditions for data-driven innovation in Europe. With the General Data Protection Regulation (GDPR) and the revision of the ePrivacy rules , the EU has set a solid framework for digital trust which is a precondition for a competitive EU data economy. With the objective of further improving the efficient use of data across the EU, the Digital Single Market strategy put in place a series of important actions in this direction. The Commission is now proposing a package of measures as a key step towards a common data space in the EU on a scale that will enable the emergence of new data-based products and services. The measures put forward are: 1) a proposal for a review of the Directive on the re-use of public sector information (PSI Directive), 2) a technical update of the Recommendation on access to and preservation of scientific information, and 3) guidance on sharing private sector data. The proposed measures cover different types of data and therefore have different levels of intensity. At the same time, they all work towards the broader goal of bringing together data, as a key source of innovation and growth, from different sectors, countries and disciplines into a common data space. The present document builds upon the evaluation of the functioning of the Directive and assesses a number of policy options aimed at updating the regulatory framework. 1.1.Policy context The public sector in all Member States produces vast amounts of data, e.g. meteorological data, digital maps, statistics and legal information. This information is a valuable resource for the digital economy. It is not only used as valuable raw material for the production of data-based services and applications, but also brings greater efficiency to the delivery of private and public services and better informed decision-making. Therefore, the European Commission has been promoting the re-use of public sector information for several years. Access to and re-use of public sector information together with the EU open data policy play a major role in improving transparency of public services delivery and the use of supporting technology by public sector bodies in general across the EU. There has been a general trend across the EU indicating significant improvement on cross-border availability of digital public services and accessibility of public websites from mobile devices. As an important feature, the EU open data policy is implemented through close collaboration with Member States, notably in a dedicated expert group , through the European Data Portal supporting publication of datasets and their discoverability across Europe, and by research and innovation actions under the H2020 programme. The Commission has also given guidance to Member States on charging, formats and key datasets in Notice 2014/C 240/01. Countries outside the EU have also adopted policies and legislation to unleash the power of government data, with the United States being the pioneer and others, such as Japan, Canada or Australia, following suit (see Annex 7 for a comparative overview). The importance of openness with respect to publicly held and publicly funded data, in particular research data, is recognised globally. In particular, OECD Council Recommendations exist on access to and use of public sector information and on access to research data from public funding. Additionally, G8 leaders signed an Open Data Charter which set out five strategic principles that all G8 members are to act on. These include an expectation that all government data will be published openly by default, alongside principles to increase the quality, quantity and re-use of the data that is released. G8 members have also identified fourteen high-value areas – from education to transport, and from health to crime and justice – from which they will release data. In its commitments to implement the G8 Open Data Charter , the EU also committed to the publication by the EU Member States of core and high-value datasets in line with the G8 principles. Creating a list of such datasets, which would be open and free by default, has the potential to facilitate the emergence of a new range of pan-European data products and services developed on the basis of mutually complementary cross-border datasets. However, the OECD Council Recommendations and the Open Data Charter are not compulsory for Member States to implement, therefore a stronger instrument proves to be necessary at EU level. Apart from political commitment, there is also broad stakeholder support for the inclusion of the datasets defined in the category of 'core data sets', as defined in the G8 Open Data Charter, so as to ensure their immediate availability in Europe , with some categories standing out as particularly relevant. These include above all geospatial data, closely followed by information in the field of transport, statistics, earth observation, environment and public finances. 1.2.Legal context The PSI Directive is a legal instrument allowing for the implementation of a horizontal policy, with a wide field of application. A detailed discussion on the interplay between the Directive and other EU legal acts and policies (in particular the challenges and opportunities related to legislation on the protection of personal data, the Database Directive and the INSPIRE Directive) is presented in the Evaluation Report annexed to this Impact Assessment. The evaluation indicates that the PSI Directive is overall coherent with other relevant EU legislation. Nevertheless, a technical clarification on the relation with in particular the Database Directive and the INSPIRE Directive may be useful. 1.2.1.Data protection legislation The rules on re-use of public sector information must be applied in full compliance with data protection legislation. This is made clear in the text of the PSI Directive. The relationship with the PSI Directive is also made explicit in recital 154 of the GDPR which states that the PSI Directive 'leaves intact and in no way affects the level of protection of natural persons with regard to the processing of personal data under the provisions of Union and national law, and in particular does not alter the obligations and rights set out in [the GDPR]'. The Article 29 Working Party on Open Data and Public Sector Information Re-use stated in its opinion: 'wherever personal data are involved, data protection law must help guide the selection process of what personal data can or cannot be made available for reuse and what measures to take to safeguard personal data'. Any processing of personal data needs to be based on one of the legal grounds foreseen in the GDPR. As demonstrated by the results of the online public consultation, the majority of stakeholders agree that the PSI Directive is well aligned with current and new rules on the protection of personal data. This suggests that the Directive contains sufficient safeguards at the level of legislation.

However, some stakeholders voiced uncertainty over the functioning of the PSI Directive in the changing regulatory environment. From the stakeholder dialogue process, it emerged that while the principle of precedence of data protection rules over PSI re-use obligations is undisputed and well understood, public sector bodies may encounter practical implementation questions on how to facilitate re-use while ensuring compliance with the GDPR in situations where certain public registers also contain personal data (e.g. car registration databases or hospital records). This most often concerns the suitability of techniques that can be used for anonymization or ways by which purpose limitation can be ensured. In some Member States the legislation transposing the PSI-Directive addresses such issues (e.g. in Belgium the legislation implementing the PSI Directive foresees that public sector bodies can seek advice from the data protection authority on the specific techniques to be used), while in others this is tackled at the level of the recommended licensing agreements between the data holder and the re-user (e.g. Spain). In order to help public sector bodies with applying anonymization techniques, this review acknowledges that anonymization has a cost and that it should be possible for public sector bodies to recover such costs as part of the marginal costs or full cost recovery principles. In addition, the support towards development of privacy-preserving technologies is an important part of the Horizon 2020 innovation actions in the field of the data economy – a wider policy framework to which the review of the PSI Directive belongs. 1.2.2.Other relevant legal instruments In terms of the interplay with intellectual property rights, the PSI Directive excludes from the scope content for which parties other than the public sector bodies ('third parties') hold intellectual property rights. Public sector bodies cannot give away what they do not own. Some specific issues have been signalled in the evaluation process about the interaction between the PSI Directive and the Database Directive . While public sector bodies have a right under Article 7 of the Database Directive to prevent extraction and/or reutilization of substantial content of databases on which 'there has been qualitatively and/or quantitatively a substantial investment in either the obtaining, verification or presentation of the contents', such right cannot be invoked in order to prevent re-use permitted in accordance with the provisions of the PSI Directive. The ongoing reviews of both the Database and the PSI Directives can help to clarify this issue. Of similar importance is the relation between the PSI and the INSPIRE Directive. In 2007, the INSPIRE Directive laid down general rules aimed at the establishment of the Infrastructure for Spatial Information in the European Union, for the purposes of environmental policies and policies which may have an impact on the environment. The Directive applies to data held by or on behalf of public authorities for the performance of their public tasks. Article 2 and recital 8 of the INSPIRE Directive establishes that it is without prejudice to the PSI Directive, the objectives of which are complementary. However, it must be made sure that the INSPIRE Directive does not enter into conflict with the PSI Directive, and that any spatial information held by public bodies can be reached according to the rules laid out by the PSI Directive. 1.3.Economic context The European data market is growing fast and could, with the right framework conditions in place, grow to 4% of the overall EU GDP. Since the public sector is one of the economy's most data-intensive sectors, the EU open data market is a key building block of the overall EU data economy. Public sector information is used across the economy by a range of companies, but it is particularly important for the growth of start-ups and SMEs. An EU incubator for data start-ups discovered a positive correlation between strong and proactive open data policies in Member States and the number of successful applicants from those countries. In a recent survey of 450 executives from European digital start-ups and conventional businesses, 50% confirmed they had used open data to build a new product or service. It is also a critical asset for the development of new technologies such as Artificial Intelligence (AI), which requires the processing of vast amounts of high-quality data. Numerous studies in the last decade have attempted to quantify the economic value generated by the re-use of public sector information. All the studies converge in concluding that the re-use of open data leads to substantial economic and societal benefits. Depending on the methodology used (e.g. the definition of 'open data', the focus on the direct impact on the data economy or wider socio-economic impacts, etc.) various figures have been put forward. The support study for this IA assesses the current direct economic value of open data to be 52 billion EUR a year for the 28 EU Member States. The European Data Portal 2015 study led by CapGemini (and updated in 2017) undertook a separate assessment of the economic benefits for open data by looking at four key indicators and how they could evolve until 2020: direct market size, number of jobs created, cost savings and efficiency gains. Open data has the potential to increase the efficiency of government through better policy making, including 1.7 billion EUR cost savings for the EU 28 public administrations. Finally, it helps in bridging the gap between government and citizens in terms of information and, in general, leads to increased social inclusion and empowerment, civic participation, and supports personal decision-making capabilities. 2.Problem definition 2.1.Ensuring the success of the open data policy in the evolving digital environment The Evaluation Report of the PSI Directive (annexed to this Impact Assessment) shows that overall the instrument works well. The report comes to the following key conclusions:

The PSI Directive continues to contribute to the achievement of its main policy objectives, which are to stimulate the digital content market for PSI-based products and services, to stimulate cross-border exploitation of PSI and to prevent distortions of competition on the EU market. Since 2015, Member States have made substantial progress in terms of open data maturity and more datasets of better quality have become available. At the same time, the instrument has had a favourable impact on transparency, citizen empowerment and public sector efficiency. However, there are a number of issues that would need to be addressed in order to fully exploit the potential of public sector information for the European economy and society: provision of real-time access to dynamic data via adequate technical means, increasing the supply of high-value public data for re-use (e.g. from semi-private entities executing public tasks and research establishments), the existence of new forms of exclusive arrangements, the use of exceptions to the principle of charging the marginal cost and the relationship between the PSI Directive and certain related legal instruments. The review should help to address the remaining barriers to the re-use of PSI and address the new needs created by technical change. In addition, the review of the Directive can address the trend of some Member States embarking on legislative initiatives addressing the re-use of new categories of datasets, while other Member States are not. It is also important to remember, however, that any intervention designed to address these issues will need to take into account the existing budget constraints for public authorities. While certain measures may be highly desirable from the perspective of opening up more public sector data and making it more easily re-usable, the costs of their implementation will need to be carefully weighed against the expected benefits, and their intensity may need to be modulated respectively. 2.2.What are the problems and the problem drivers? 2.2.1.Contextual drivers The advent of new technologies, in particular in the areas of data analytics and the Internet of Things, has had a significant impact on the way data can be exploited in the economy. Two key consequences of this trend are a growing demand from businesses for dynamic data and the need to have access to a larger pool of data. Dynamic data is captured by sensors, which become ever smaller, more performant and cheaper. They hold valuable real-time data from industrial processes, personal activities or physical phenomena. This trend is further enhanced by increasing connectivity and sensor usage. It is estimated that 11 billion devices are currently connected to the Internet and this should almost triple to 30 billion by 2020. The public sector, in line with widespread digitisation efforts and the impact of initiatives such as Smart Cities, will also produce growing amounts of sensor-generated data. Access to such dynamic data can be greatly enhanced if public sector data holders use application programming interfaces (APIs), which allow controlled data access and exchange leading to new ways of interacting in an online environment. Apart from the rise in commercial exploitation of dynamic data, another contextual driver fuelled by advances in data processing technologies is the need for businesses to be able to combine data from different sources. There are increasing economic opportunities in accessing, using and re-using large volumes of data of different types and from different sources. Therefore it is important that different types of data are available for use in the data economy. At the same time, there is considerable heterogeneity in the types of data available from one Member State to another,with some countries moving ahead through legislation and making more types of data freely available in new areas of public interest, while others are lagging behind. In this context, there is an understandable tendency on the part of commercial players to seek preferential access to large public datasets. These datasets can give a competitive advantage for added-value information services and products, or be used to train artificial intelligence systems. This has led to the emergence of cases in which preferential arrangements between public sector bodies and commercial players have led to data lock-in, thus making the prospect of the exploitation of such data by other actors commercially unviable. Finally, the long-standing budgetary pressure on public sector bodies encourages some of them to cover a part of their operating costs from commercial activities, such as charging for the re-use of their data. Although seemingly it would appear that in an environment where public authorities are subject to budget constraints, revenue generation from data could be a viable source of financing, it has been proved that this approach leads to sub-optimal results from a macro-economic perspective. One of the widely accepted and evidence-based principles of the amending Directive 2013/37 EU is that public sector bodies should not apply any charges or limit them to what is needed to cover the marginal costs of reproduction and dissemination of the data. Since in the digital environment such costs are minimal, the charging principle of the PSI Directive can be said to be that of zero (or at most marginal cost) pricing. These contextual drivers are at the basis of the following four problem areas identified in the evaluation of the Directive and discussed below: 1) Insufficient use of methods for access and re-use of dynamic data by machines; 2) Market entry barriers and fragmentation; 3) Insufficient availability of public and publicly-funded data for re-use; 4) Distortion of competition in the internal market. All these problem areas prevent the full exploitation of the economic opportunities offered by public sector information and create fragmentation on the single market, albeit to different degrees. The public consultation process has confirmed that the first three are the most significant and would require swift regulatory intervention. The fourth one is a new, emerging issue, which has had limited negative impact so far, but given the growing significance of data in the economy it is reasonable to expect that its impact will grow, thus justifying intervention at this stage. 2.2.2.Problem area No. 1: Insufficient use of methods for access and re-use of dynamic data by machines The percentage of dynamic data being made available by public sector bodies, despite its high re-use potential, is still very low. The Impact Assessment study confirms that the delivery of dynamic data is an important challenge for public bodies collecting that type of information as many of those are not adequately equipped. This can be due to the technical limitations and requirements that appear when the frequency to update datasets is shorter than a minute, or to the lack of resources. Additional drivers behind this problem are low awareness of the benefits of APIs and low awareness of the value that real-time data has for the creation of commercial applications. The insufficient use of APIs or other methods for access and the re-use of dynamic data by machines has been confirmed by stakeholders, in particular from the re-user community, who recognise this issue as one of the main barriers for data re-use. This was for instance emphasised in the Commission's 2017 public consultation on 'Building a European data economy initiative' where the summary report noted that 68% of respondents clearly support an increased use of APIs. In a recent study based on a representative sample of the total volume of public sector information (20,000 datasets), it was found that while the majority of services generated from open data are based on real-time data (66%), less than 1% of the data published in open portals are updated in real time. While the usability and commercial potential of dynamic data is directly related to its immediate availability, there is little awareness and competence among the public sector institutions regarding the available tools and methods, such as APIs, that could enable such availability. Given the budget pressure, there is also reluctance to invest in new technologies. Apart from the fact that public data is not systematically provided through APIs, there are considerable differences between Member States in this area. This is for example clear in the way in which their national portals can be accessed. Austria tops the list, with 71-85% of all visits to its portal deriving from machine traffic. Romania comes second, with 41-55% of its traffic coming via API calls, followed by the UK with 26-40% of visits. 22 out of 28 Member States had API traffic of less than 10%. The figures are encouraging in the sense that the most costly investments on the national level have already been made. Yet, it can be safely assumed that on the lower levels of government, the provision of APIs and their actual usage are less widespread, despite clear benefits: cities produce data in many forms and from many sources, and the wide variety of formats makes it difficult to scale open data applications from city to city. The results of the online public consultation indicate that stakeholders in general ask for wider availability of dynamic data and APIs from the public sector. 77% of stakeholders were in favour or strongly in favour of further investments to be made to encourage public sector bodies to provide dynamic data in real time and invest in technical solutions facilitating data usability, in particular through APIs. Respondents also requested dynamic data generated by the public sector for further re-use. This position was strongly voiced by the PSI re-users in particular. The findings of the Evaluation Report and a dedicated external study confirm that instead of this being just a legal requirement which is imposed on public sector bodies, additional practical support is necessary for many public sector bodies across Europe to move towards web-based functionalities and a more wide-spread use of dynamic data and APIs in general. Public sector bodies seem to need additional assistance to be able to offer data as a service and in a dynamic way. It is important to note that this approach cannot apply to all types of PSI (e.g. court decisions), but will be invaluable for others, as document-based mechanisms in various cases will not work (e.g. in the case of location apps). While other technological trends such as the need for machine-readable data and interoperability have been integrated in the last revision of the PSI Directive, the need for timely availability of dynamic data is just mentioned once in recital 12. As a consequence, the insufficient use of technologies for the management of dynamic data by the public sector results in more difficult access to public data repositories, lower machine-readability of dynamic data and lower suitability of data for processing (visualisation, integration into 3rd party applications). This in turn leads to a sub-optimal use of dynamic data from the public sector for the creation of value-added services. 2.2.3.Problem area No. 2: Market entry barriers and fragmentation Public institutions holding high-value datasets (such as hydrographic or meteorological data, or digital maps) are often expected or required to maximise revenue from the re-use of this data in order to cover part of their operational costs.

This is, however, unjustified from the macroeconomic point of view. Public sector information is a non-rivalrous good that can be re-used multiple times and its high price elasticity means that a decrease in price triggers a surge in usage. It is produced as part of a public service, so its creation does not depend on market forces. Most importantly, cheap or free government data generates extra commercial activity, especially by SMEs, which translates into more jobs and revenue from taxes. In addition, the public sector is itself a key user of the data, so part of the income for one public sector body leads to costs for others, as well as to a suboptimal use of the data for public purposes. Finally, charging generates substantial costs for public sector bodies producing the data, since it presupposes, amongst other things, that an invoicing and control system is in place. These arguments were the basis of the 2013 change from a full-cost charging regime to a regime based on (at maximum) the marginal costs of dissemination. Some of the arguments are further elaborated in section 6.1 below. The current PSI Directive presents a number of exceptions to the rule that public sector bodies can charge at maximum the marginal cost of dissemination for making their datasets available. This is the case for public sector bodies that are required to generate revenue to cover a substantial part of their costs relating to the performance of their public tasks. While there is no evidence that would indicate that there has been an excessive use of exceptions, the Impact Assessment study and the Evaluation Report confirm that the use of exceptions has led toincoherent and widely varying charging practices for the re-use of similar datasets across the EU. This is made worse by diverging licensing practices, as confirmed by 67% of respondents to the online consultation. The resulting situation is one where there is market fragmentation, with higher entry barriers in some Member States than in others, as shown in the example below. Moreover, the Impact assessment study found that heterogeneous practices in terms of charging persist not only between Member States but also between public sector bodies within the same state. Across the EU, public organisations charge considerably different prices for a dataset with the same quality and type of data. Re-users from different countries complained about these different practices. In addition to market fragmentation, the charging and licencing practices negatively affect the extent of PSI re-use by SMEs and start-ups. They result in an uneven playing field among re-users, given that large, multinational companies can easily afford the acquisition of public datasets, which are outside the reach of innovative SMEs or start-ups. This translates into an opportunity cost to be borne by the entire society as a more limited number of innovative services and products can be developed. Example No 1: a Swedish company Seapilot produces digital navigation apps based on marine chart data from hydrographic offices across the EU. However, widely divergent pricing models (e.g. one off payment, royalties, fees linked to updates) and the resulting charges applied (EUR 2,745 in France to EUR 18,900 in Italy) make it increasingly difficult to compete on a global scale, especially given that equivalent US data is free of charge. Example No 2: In Belgium, the company register is made available for re-use at a price of 75,000 EUR annually, leading to a situation in which start-ups and SMEs face a market entry barrier so that this dataset of high socio-economic interest is effectively re-used by only two companies. As for the views of stakeholders on charging and its impact on market fragmentation, in the online public consultation most of the respondents indicated they were in favour of abolishing the current exceptions or at least clarifying the circumstances under which these exceptions could be allowed. However, there was a clear split between PSI holders and PSI re-users, with the latter clearly in favour of abolishing or at least clarifying these exceptions and the former mostly of the opinion that they should not be changed and need no clarification. 2.2.4.Problem area No. 3: Insufficient availability of public and publicly funded data for re-use 2.2.4.1 Data held by public undertakings in the transport and utility domains Public sector tasks may be carried out not only by public authorities themselves but can instead be entrusted to entities with organisational or management links to the public sector, or those that lack such links but benefit from public funding (public undertakings). In some cases public sector tasks are also performed by private entities which act on the basis of special or exclusive rights or concessions from public sector bodies. This is typically the case in the transport and utility domains (provision of water, electricity, etc.). Currently, data held by public undertakings in these domains does not fall under the scope of the Directive. Data held by entities active in the transport and utility domains is amongst the most valuable for stakeholders in the data economy and it can serve as the basis for a number of added-value services and applications. Opening up this data is of considerable value for commercial re-use. Topics such as environment, transportation, energy or housing were among the domains most often consulted in open data portals in 2016. National figures confirm that data from transport and traffic domains are very popular. In Spain, of all the applications with a business model behind, 47% are created with transport data. It is also important to remember that due to their link with the public sector, entities active in transport and utility domains are subject to a dedicated public procurement regime. Moreover, historically these operators have had to operate in a stricter regulatory environment compared with other businesses. Examples are to be found in the area of infrastructure provision where ex-ante or ex-post regulation has been established to enhance competition and reduce monopolistic or dominant positions in these sectors. Often governments or public companies still hold large shares in these infrastructure companies, or these companies operate under concessions or other exclusive contracts with public sector bodies. As explained in the Impact Assessment study, access to data from entities active in transport and utility domains depends on company preferences, Member States' open data strategies and legislation, and individual re-user activities. As a result, stakeholders of the re-user community are faced with a situation in the EU where data access and re-use happens at different speeds in different countries and opportunities to develop cross-border applications are limited. It has been stressed that the potential of data-based solutions in those sectors, especially in energy and transport, is significant, but there is insufficient progress in opening up data by the companies themselves. In the transport sector, for example, the study found that in all Member States data availability varies widely across the transport modes. While examples of simple travel information applications are manifold, intermodal service examples are limited, especially as regards door-to-door travel applications. The same study found that the general interest of public undertakings to generate profits to have returns on the investments related to the specific datasets represents a major barrier to sharing their data. Another barrier to sharing data with public organisations is the complexity of regulation on public undertakings in general. Some examples of what can be done when data from entities active in transport and utility domains is opened up are provided below. Example No 1: A Copenhagen-based start-up Tomorrowuses real-time data from energy grid operators to act as a data broker for historical energy data and to offer dynamic APIs to track the origin of electricity in real time and to forecast consumption, enabling lower emissions, higher renewables and cheaper electricity. Example No 2: Transport for London (TfL) released via an API over 200 data sets (bus and metro arrivals, departures, status, cycle hire docking station status, etc.) which created a community of 14,400 developers with over 600 apps. London has gained around 100 million GBP direct value by technological investment and TfL's open data ecosystem has led to the creation of about 500 directly and 230 indirectly related jobs. TfL praises the effect that the re-use of its data has had in reducing the commuting time of the passengers and thereby improving TfL's efficiency. The examples above show the positive developments in these sectors. Still, overall there is a mismatch between the expectations of the re-users and the data actually available. For example, in some Member States only 3.9% of all the open data published is from the transport area. Save for a few exceptions, data generated as a result of activities carried out in the utilities sector is not generally made available for re-use. Only 23% of the respondents to the public online consultation agreed that data in these sectors was currently available for re-use. The figure was higher (36%) for transport, while it was considerably lower (14%) for the utilities. The stakeholders also indicated that data from the transport and utilities sector should be more widely available. A large majority (71%) of respondents to the online consultation, in particular from the re-user community, believe that data generated in the context of the provision of a public task by publicly owned companies or by independent economic operators, irrespective of the public or private nature of the data holder, should be made available for re-use. Similarly, an overwhelming majority of replies (81%) indicate that if there were an obligation to make data generated in the context of the provision of a public task available, such data should be available for all interested re-users for any purpose. Although a minority, there are also more cautious opinions on these issues, in particular from businesses in the fields of transport, energy, waste and water. In particular stakeholders from the transport sector have expressed concerns. They believe that data is crucial for maintaining their competitiveness and as a result any requirements to make it more open and re-usable should be carefully balanced, as new obligations in this regard may distort competition in the sector. Stakeholders from entities active in the transport and utilities sectors have also indicated that imposing data sharing obligations on them may have an impact on ensuring the security of critical infrastructure. Moreover, some are anxious that compliance with the new requirements will mean an additional administrative burden. The lack of availability and re-usability of data in the relevant areas has led the Commission to propose sector-specific rules. The transport sector was covered by legislation on the provision of EU-wide multimodal travel information services, which will lead to the wide availability of a range of relevant datasets. In the energy sector, a recent proposal for a recast of the Electricity Directive includes provisions enhancing access to consumer data, while in the water sector the Commission has proposed provisions on the sharing of water parameters data in the context of the review of the Directive on the quality of water intended for human consumption. However, these rules are driven by sector-specific concerns and focus on selected datasets. In the case of transport data, the rules cover both public and private entities, which has lowered the ambition level with regard to the availability requirements of some of the data. Consequently, the full innovation potential of public and publicly funded data in the areas of public transport and the utilities sector is currently not realised, and this amounts to missed opportunities, given the economic and societal potential of such data. 2.2.4.2 Research data

Scientific information produced with public funding is an invaluable resource for innovation, for the broader economy and for addressing societal issues. There is also substantial evidence that data sharing is correlated with better science. Nevertheless, scientific information is often not readily available for re-use, despite growing acceptance of the Open Access approach to research data both globally and in the EU. This is related to the following factors: ·Fragmentation of policies due to the dependence on a wide range of institutional and (national or other) funding mandates and arrangements, and weak compliance: the funding mandates are often not properly implemented. ·Policy framework not fully fit for purpose, given that the 2012 Commission Recommendation on access and preservation of scientific information is no longer up to date. Notably, it does not take into account the recent EU policy developments in the areas of Open Science, and the spread of machine-generated and dynamic data. ·Lack of focus on re-use since open access mandates focus on access to scientific information, while re-use of this information is dealt with in disparate ways. ·Lack of incentives/rewards to allow the re-use of research data: Many researchers remain reticent on the idea of opening their results due to the lack of awareness on the potential benefits of open science. Also there are no individual rewards compensating for potential loss of competitive advantage of keeping results closed. The Impact Assessment study confirms that there is consensus in the literature about the lack of research data sharing and puts forward various examples from bibliometric analysis and surveys of researchers, ranging from only 13% up to to 79% of research data being shared. The study also confirms that there is a wide range of underlying reasons impeding the sharing of research data. Among them the most prominent causes seem to be the different data sharing cultures in the different disciplines, legal certainty regarding copyright over the datasets concerned or the reluctance of companies to share data with researchers when they know that the data will be openly shared. Many of these statements have also been expressed in a dedicated workshop on 'Open Research Data' and in a public hearing on the PSI Directive review. The 2012 Commission Recommendation on access and preservation of scientific information has created a framework for open access to research results at the European level. It has led to substantial progress across the EU in opening up research information. At the same time Member States reports collected in 2017 show the limits of the non-binding approach. National policies or overall strategies to encourage or mandate Open Access to research data have been adopted in only 8 out of 28 Member States. Figure 2 - Member States reporting on national level strategies or policies for open access to research data While it is true that some Member States also reported that such open access policies with respect to research data exist for at least 'some academic institutions and/or research centres' (18 Member States reported this to be the case), the FAIR principles, a community standard for findable, accessible, interoperable and re-usable research data, is supported either at national or at institutional level in only 16 Member States. Where mandates for open access are in place, they are often not enforced. 44% of respondents in the Figshare survey declare that they have an institutional mandate but it is not enforced. Moreover, data resulting from publicly funded research is often not fully open or not open under harmonised and clear terms. This trend is shown by the data and analysis from the OpenAIRE Infrastructure from October 2017, where H2020 publications account for 12,000 articles, but only 404 datasets. In addition, there are substantial discrepancies in how open publications are available in the different research areas, and also to what extent research data is actually available. On the one hand, there is a flourishing landscape of research data repositories. Among the 1,381 research data repositories examined in the project re3data, 95.5% were qualified as open, meaning accessible without any financial and technical barriers and 86.2% of their research data content is available in open access data at least partly. On the other hand, an analysis of the URL links embedded in papers published by the American Astronomical Society over 15 years found that 44% of those links were broken 10 years after the publication. 15-20% of links pointing to curated data archives were broken, while links to project or personal websites decayed at much faster rate. Bibliometric analysis shows that data from only 13% of articles in top-level journals is available. Finally, there is a problem of diversity and inconsistency of the licensing practices which are not oriented toward favouring re-use. This issue was reported as a shortcoming of the current policy set-up by stakeholders from the research community in a workshop on Open Research Data. Legal solutions vary among repositories, and even among datasets. Under the FAIR principles researchers retain a margin of discretion to decide on relevant re-use conditions. In many cases it is not clear what re-users are allowed to do with the data, or there are unnecessary restrictions. For example, in two recent surveys on curated data resources, respectively over 30% and over 60% of respondents have reported to be unsure about the terms of the license to be used. The large majority (81%) of respondents to the online consultation, representing different groups of stakeholders, agreed that there should be one common policy for open access in Europe, binding on all research funding organisations and academic institutions in Europe. This is currently not the case. Given the non-binding nature of the Recommendation, EU leverage to remedy the above-mentioned weaknesses is limited. As a result, the limited availability of research data for re-use makes it difficult to conduct further scientific research based on such data or to apply data analytics technologies and to mix such data with other public or private datasets to produce added-value services. 2.2.5.Problem area No. 4: Distortion of competition in the internal market While the value of government data increases with the advances of technology, notably due to new fields of application such as the Internet of Things or artificial intelligence, the public sector often lacks expertise or sufficient funding to derive insights from the data it holds. New types of partnership agreements are emerging in which companies offer advanced data analytics services/infrastructure in exchange for preferential access to the data. With rapid technological advances and growing opportunities in the field of data analytics, these new kind of public-private parterships will become all the more frequent. The Impact Assessment study found that in practice public sector bodies are not sufficiently aware and trained to understand and spot the potential risks related to the establishment of exclusive arrangements with regard to the datasets that they hold. In certain situations, public sector bodies are financially obliged to rely on exclusive agreements in order to be able to afford the costs of new initiatives linked to, for example, digitisation or new services. In such circumstances, agreements that inadvertently lead to a situation of exclusivity on the data may pass unnoticed. In order to create a level playing field among re-users, the PSI Directive in principle prohibits exclusive agreements for the re-use of public sector information, as well as any other form of discrimination between re-users. This means that publicly funded data cannot be given to only one or a limited set of companies, and that the conditions for re-use must be the same for all. Taking into account that the number of public-private arrangements which involve the transfer of public sector information will be on the rise due to the new possibilities of data exploitation that the public sector itself cannot ensure, a targeted policy response appears necessary.

This is also motivated by the fact that public bodies and potential re-users of the data believe that exclusive exploitation of data is very rarely justified. However, businesses commonly entering into exclusive agreements tend to say that this advantage in exploitation of data is an essential incentive for the private sector to invest into projects in which otherwise it would have not invested at all. The stakeholders’ consultation confirms such conflicting views from yet another angle: while Member States generally report they are not aware of exclusive arrangements based on public sector information, other stakeholders signal that problems in this area persist. Just 38% of the respondents to the public online consultation consider that such agreements are used only exceptionally and are limited to the cases allowed under the Directive (digitisation of cultural resources, public service necessity). Additionally, among the respondents to the public consultation who indicated that certain provisions of the Directive could be clarified, many referred to the area of exclusive agreements. This request was also reiterated by several representatives of the re-use community present at the High-level Round-table discussion on Public Sector Information in January 2018. The contradictory voices referred to above can be explained by the nature of the examples mentioned by stakeholders and experts in the context of the Impact Assessment study and the broader consultation process. They mostly concern new types of agreements that are not a classical relation between a public sector body and a re-user, but involve a compensation in kind in exchange for preferential conditions to use the data. This kind of situation is not addressed by the current provisions of the Directive. The examples mentioned by stakeholders come in the first place from the context of smart cities. They concern cases of the exclusive use of sensor data by the company installing the sensors, the exclusive use of data on street lighting, and arrangements between certain cities and service providers of navigation and localisation services involving privileged use of public data. Some local authorities are actively pursuing these kinds of partnerships, in order to limit their costs and to get hold of some of the data from private companies. Another area concerns the use of health records. Examples of agreements involving public health services and companies in the UK, Belgium and Italy have recently attracted the attention of the press and the relevant authorities for reasons related in particular to data protection. The new types of arrangements where in kind compensation is given in exchange for preferential use of public data have clear advantages for both the public authority and the companies involved. At the same time, they could lead to a situation in which no other commercial re-users would have an incentive to re-use the same dataset in a similar manner, which would in practice circumvent the provisions of the PSI Directive on non-exclusivity and non-discrimination, as illustrated by the example below. Example: One of the largest National Health Service providers in Britain provided Google-owned artificial intelligence company DeepMind with 1.6 million patient records to assist in the management of acute kidney injury by using technology to track patients’ symptoms and send alerts to doctors. Although this partnership does not in principle exclude other companies from being provided access to NHS data (and re-use it), Google’s lead in this regard could distort incentives for competition. Moreover, the NHS will have invested, and continues to do so, resources and human capital in this partnership. Another concern relates to the different negotiation power and knowledge base of the partners, which could be exploited by the private partner. Due attention needs to be paid to contract clauses or situations where preferential use of the data is considered as one of the benefits for the private party. All of the above confirms that in the context of new types of agreements between public authorities and private companies, in which the value of public datasets can be captured by one or a limited number of players, the risk of side-lining smaller entities, in particular start-ups and SMEs, is considerable. This risk will tend to grow in the near future with the expected rise of the number of public-private arrangements that will be made to meet with the growing opportunities and following demand in data analytics. 2.3.Who is affected and in what ways? The PSI Directive broadly affects two sets of stakeholders: public sector bodies and re-users. The beneficiaries of open data policies can be found in all economic sectors. Annex 4 to this document shows in detail how many stakeholders are affected and how. 2.3.1.Public sector The main aim of the Directive is to ensure the availability of information held by the public sector, therefore public sector bodies across the EU are affected by its provisions. They bear the compliance costs of the legislation including for any changes to the regulatory framework. At the same time, public sector bodies use open data to improve policies and the delivery of public services. The rise of 'data for policy' initiatives testifies the growing importance of data for the public sector at large. In addition, the research and educational organisations and public undertakings in the transport and utilities sector would be affected as new addressees of the Directive. However, they are also among the beneficiaries of open data policies. 2.3.2.Private sector, in particular SMEs A myriad of companies of different sizes and expertise participate in the value chains involving the re-use of public sector information: Figure 3 - The Data Value Chain and Data Value Chain Archetypes

Source: EDP Analytical Report 9: The Economic Benefits of Open Data Companies active in various fields, (e.g. market/research, economic/financial, publishing) typically use open data to improve already existing services, in addition to data derived from other sources. Most can be classified as 'aggregators', with a substantial part using open data as their main input towards developing web- or mobile applications. Most companies benefiting from open data are SMEs, which represent 99.8% of companies active on the European data market. 2.4.How will the problem evolve? Overall, the effects of technological change and the trend of individual Member States to legislate on the availability of data in new sectors could lead to an increasing gap in re-use conditions in the EU.

It is expected that there will be exponential growth in the volume of real-time data without enough storage capacity for the newly created data, which will strengthen the need to release the data to those who can make use of it. Therefore the use of APIs will be increasingly important and speeding up the take-up of APIs is necessary in order to fully reap the benefits of publicly funded data. The persistence of the current market access barrier linked to the cost of data is likely to lead to a strengthening of the major economic actors active in the open data markets to the detriment of local innovative SMEs and start-ups. Data in the transport and utilities sector will continue to grow in importance as a source of innovation and new products and services. The implementation of the sectoral EU legislation will improve the availability of data, but the overall potential of opening up data in these sectors for the economy and society may not be fully realised. The ongoing efforts to make open access to research information a universally accepted principle across Europe will lead to further results, but it is likely to be a lengthy process and Member States will move at different speeds. Given that researchers themselves are largely in charge of the process of implementing Open Access, the re-usability aspects, such as licensing conditions or technical usability (which are essential for ensuring the impact of research data beyond the research community) may not get sufficient attention. The trend towards new types of arrangements between the public sector and private companies involving preferential or exclusive use of public data is likely to continue. Large companies will intensify their search for the most cost-efficient sources of high-quality data. At the same time, public sector bodies at all levels of government will look for partners who can help them to exploit their data assets, since the performance of the primary public tasks often makes it difficult to invest in data analytics capacities. 2.5.REFIT considerations The PSI Directive currently affects two large sets of stakeholders: re-users and public sector bodies, but it only imposes obligations on the latter. When considering these obligations, it should be borne in mind that several requirements of the Directive, notably those related to the practical arrangements for making data available, are part of an overall effort towards digitising the public administration rather than specific PSI Directive-related costs. While the Evaluation Report shows that there is an overall positive appreciation of the efficiency of the Directive so far, there are areas in which the reduction of administrative burden strictly related to the implementation of the Directive could be achieved: Reporting obligations: The current Directive includes a reporting provision (Article 13.2) which obliges Member States to submit, every 3 years, a report to the European Commission on a number of issues that enable the Commission to measure the effects of the implementation of the Directive. Dealing with individual re-use requests: The necessity to process re-use requests is the main administrative burden that can be attributed solely to the PSI Directive (Chapter 2 – Requests for re-use) and has been estimated to be in the range of 30 hours in terms of required time per single request. Charging for re-use: In case the public sector body applies charges for re-use, it incurs additional administrative burden such as the processing of invoicing, but also costs related to the monitoring of compliance with the underlying license arrangements at the source of the charge. Dealing with complaints: A corollary to the individual re-use requests, and to a lesser degree to the use of custom licensing arrangements, is the higher risk of complaints leading to administrative and judicial proceedings (redress procedures). Clarifying the interplay between the PSI Directive and other EU acts (INSPIRE and Database Directives): The coherence with these directives makes the application of the PSI Directive easier and less-resource consuming, due to higher legal certainty. At the same time, commercial entities (mostly SMEs) will considerably benefit from the online availability of high-quality data without cost. This will eliminate the need to make individual requests, as well as any transactional costs, thus contributing additionally to the REFIT objectives. 2.6.Access to private sector data for public interest purposes The issue of access to private sector data for public interest purposes was part of the public online consultation on the review of the PSI Directive. While public data is already used to save costs and increase efficiencies within the public sector itself, modern policy making has become a data-intensive activity to such an extent that public institutions rely more and more on access to private sector data to carry out their tasks. This trend was acknowledged by the respondents to the public online consultation, and there was strong support for action in this area, with 81% of the respondents indicating that specific legal measures need to be put in place in order to facilitate access to private sector data for public interest purposes. However, the wider stakeholder engagement process showed that there is still considerable uncertainty regarding the exact objectives, justification and practical methods under which such transfer could take place. Stakeholders from the private sector (e.g. telecoms companies) and public undertakings in the transport and utilities sector indicated, notably during a recently held public hearing, that the issue is not ripe for horizontal legislative action at the EU level. This is why the subject of access to private data is not included within the policy options discussed in this Impact Assessment and will be addressed separately within the 2018 Data Package. 3.Why should the EU act? 3.1.Legal basis The legal basis for intervention is Article 114 of the Treaty on the Functioning of the European Union. The revision will build on this legislation and any amendment to this Directive should be based on the same legal basis.

In accordance with Article 5(3) of the Treaty on European Union (TEU) any EU action should respect the principle of subsidiarity. This involves assessing two aspects: the necessity test and the EU added value test. 3.2.Subsidiarity: Necessity of EU action The removal of the remaining obstacles to an open re-use of public sector information and simultaneously aligning the legal framework to the evolving digital socio-economic environment cannot be achieved by Member States alone. Diverging national legal solutions would likely compromise the growing tendency towards cross-border re-use, whereas the different levels of 'open data readiness' across EU Member States would persist or deepen, having a negative effect on the homogeneity and competitiveness within the Digital Single Market. The evidence for such a diverging approach to the furthering of open data policies is already emerging, as countries such as Finland, France or Denmark are enacting legislation which aims to enable the data economy to benefit from new sources of data. These efforts, while in line with the overall objectives of the DSM strategy, are not coordinated. Combined with slower or non-existent initiatives in other countries, they risk undermining the level playing field for commercial re-users, as well as the development of cross-border applications in the EU (insufficient availability of source data across the Member States makes it economically unviable to produce a cross-border service or to replicate an existing data-based service from one Member State to another). The actions proposed are proportionate, since national intervention will not be able to achieve the same results (increase in openly re-useable PSI), whilst at the same time ensuring a competitive and non-discriminatory environment across the entire Single Market. The proposed actions, in particular restricting the use of exceptions to marginal cost charging and introducing the obligation to make certain high-value datasets freely available, can be seen as the next step towards full availability of PSI for re-use: a policy objective accepted by the Member States already in 2003 and confirmed in 2013. The necessity of the Directive is unquestioned by stakeholders consulted in the public online consultation and in the context of the IA support study. National initiatives in the field of PSI would have not been sufficient to address possible market distortions and market failures and offer a level-playing field to all businesses. The necessity of coordinated action on EU level is further backed by the success of previous legislative interventions, as testified by the EDP Open Data Maturity report comparison across the years. Moreover, during the consultation process a large number of Member States expressed their support for the review of the Directive, based on the observation that the uneven implementation across Member States is creating fragmentation on the single market or bottlenecks to market development. In particular, they were supportive of extending the scope of the PSI Directive and making some of the high-value datasets obligatory for free dissemination (see also chapter 6.4). 3.3.Subsidiarity: Added value of EU action The vast majority of respondents (87%) in the recent public online consultation, representing different groups of stakeholders, see a clear EU added value of the PSI Directive, namely that it has played a role in encouraging the national authorities to open up more public sector data across the EU. At the same time, 63% believe that it has facilitated access to PSI from countries other than the one where the person concerned lives. Similarly, almost 64% indicate that the PSI Directive has been conducive to the creation of an EU-wide market for products and services based on PSI. The EU added value of the PSI Directive was also strongly highlighted in the expert interviews conducted in the context of the support study and presented in more detail in the accompanying Evaluation Report. Action at EU level is also best suited to guarantee that public data of comparable thematic scope are available for re-use across Member State borders under similar legal and technical conditions so as to facilitate the offering of services based on data sourced from different EU countries or for applying a data-based business model tested in one Member State seamlessly to another. 4.Objectives: What is to be achieved? 4.1.General objectives The overall aim of this initiative is to contribute to the strengthening of the EU’s data economy by enhancing the positive effect of the re-use of public sector data on the economy and society. This will be done by increasing the amount of public sector data available for re-use, ensuring fair competition and easy access to markets based on public sector information, and enhancing cross-border innovation based on data. The initiative is part of the DSM Strategy that has emphasised the impact of the data economy on the growth of European businesses, modernisation of public services and the empowerment of citizens. 4.2.Specific objectives The general objectives translate into the following specific objectives: a)Adaptation to technological changes in the field of data management and use The production of data is no longer an issue, as data generation via computer networks and sensors has become inexpensive. It is rather the ease with which data can be found, accessed and combined with other data that defines its impact on the overall economy. This means that for the data to be searchable, understood and contextualised (especially by machines), the datasets need to conform to minimum quality standards with regard to their format, description and methods of access. b)Lowering the existing barriers to accessing PSI re-use market and preventing the emergence of new ones This specific objective aims at eliminating entry barriers for companies, in particular SMEs and start-ups that want to re-use public sector information. In this context, the charging rules are particularly relevant, including the mechanisms to make certain high-value datasets available free of charge, in line with the commitment made by the EU in the framework of the G8 Open Data Charter. Another issue that needs to be tackled is the risk that public sector information is locked in because of new types of agreements between public sector bodies and large companies.

c)Making more data available for re-use as raw material for innovation Thanks to the PSI Directive, a large array of public sector datasets is available for re-use across Europe. However, data produced and held by public undertakings in utility sectors, as well as publicly funded data resulting from scientific research, is currently not covered by the Directive. Bringing the relevant data within the scope of the Directive, while respecting the particular situation of the respective sectors, will enlarge the overall pool of re-usable data produced either directly thanks to public funding or within the scope of services of general interest for the benefit of the economy and reinforce their cross-border re-use. 5.What are the available policy options? 5.1.What is the baseline for assessing options? The baseline situation is described in the evaluation report of the PSI Directive. It shows where Member States stand in terms of open data maturity, after having made considerable progress over the last few years. On the supply side of public sector information, the current level of open data maturity is the baseline for assessing future developments. As for the impact of the policies, the baseline used as a benchmark is the current direct economic effects of open data of 52 billion EUR a year for the EU 28. This figure is higher than some of the other available calculations of the impact of open data policies, but considerably lower than the most optimistic ones. 5.2.Description of the policy options (A) Baseline Scenario: Maintaining the current approach without changes The option of 'no policy change' would mean that the current provisions of the Directive would remain applicable. The Member States would be bound by the rules set by the 2003 Directive, modified by Directive 2013/37/EU. (B) Discontinuing existing EU action: Repeal of the PSI Directive This option would effectively result in the removal of all the regulatory obligations currently contained in the Directive. (C) Soft law measures only Soft law instruments in the area of Open Data have been used in the past. After the adoption of the amending Directive in 2013 and still within the transposition period, the Commission adopted a Notice 2014/C 240/01 'Guidelines on recommended standard licences, datasets and charging for the re-use of documents' for this purpose. Another relevant soft law instrument is the Commission Recommendation to Member States on access to and preservation of scientific information. These two documents could be updated in order to reflect the technological and policy changes that have occurred since their adoption. (D) Packaged solution consisting of both amendments of the PSI Directive and soft law (update of the Recommendation on access to and preservation of scientific information) For the different issues outlined in the problem description, two scenarios of varying degrees of intervention were identified. Both scenarios contain hard and soft-law elements. Despite the fact that it would be conceivable to address the policy objectives by a mix of actions scattered across the two options, it was decided to regroup the possible intervention choices into two packages along the lines of high and low intensity of regulatory intervention. Given the complexity of the problem areas, such regrouping of individual intervention areas was crucial for obtaining meaningful feedback from the stakeholders. Policy option (D) is therefore split into two policy packages having similar objectives but leading to a different level of impact in terms of costs, benefits and administrative burden. The main elements of the low and high-intensity scenarios are described below in relation to each of the intervention areas targeted. They are further mapped onto concrete legislative amendments to the text of the PSI Directive, included in the table on page 31. Dynamic data/APIs ·The higher intensity option would oblige all public sector bodies of the Member States that already produce dynamic data, to make this data available in a timely manner and to systematically introduce APIs for that purpose. ·The lower intensity option would create an obligation for Member States to make dynamic data available in a timely manner and to introduce APIs, where possible under technical and financial circumstances. For a limited number of datasets (high value data to be defined in the Delegated Act) there would be a hard obligation to do so. The options focus on the ways in which the availability and usability of dynamic data can be enhanced, rather than addressing the broader issue of optimal data formats and publication methods, even if respondents to the online consultation tend to view all these factors as one common 'technical barrier' to re-use. This is chiefly because the insufficient release of dynamic content is a problem in its own right (given massively rising demand for this kind of data) and because the Directive already includes provisions specific to formats (Article 5), while being silent on dynamic data and use of APIs. In addition, the Directive does not have the ambition of harmonising data or metadata standards; instead, the Commission promotes their adoption via the ongoing support actions (European Data Portal, ISA2 programme) and soft law (Notice 2014/C 240/01). Charging rules

·Under both options, the charging rules would explicitly mention the costs linked to anonymization of datasets containing personal data as costs that can be recovered by a public sector body both under the marginal costs and full cost recovery principles. This acknowledges the fact that in many re-use scenarios, datasets containing personal data need to be anonymised and that such anonymization has a cost. ·The higher intensity option would eliminate all the exceptions to the general rule that public sector bodies cannot charge more than marginal costs for dissemination. ·The lower intensity option would tighten the charging rules by eliminating the current exception of allowing charges for certain specific documents (deemed unnecessary as it does not address a wide range of real-life situations) and by enhancing transparency with a requirement for the Member States to publish a list of public sector bodies that fulfil the requirements of article 6(2)(a) and can therefore charge above marginal costs. This will only concern a small number of public sector bodies and therefore creating the list will not put a large burden on Member States. These measures would be accompanied by the adoption of a limited list of fundamental high-value datasets that should be freely available in all Member States (to be adopted through a Delegated Act). Both options are realistic by taking into account the current trend of introducing a 'principle of gratuity' in national legislation (e.g. France, Slovenia), coupled with the fact that charges are typically applied not evenly across the board but rather by a small number (fewer than 10) of public institutions in each Member State. An alternative option whereby charges from high-value datasets would have to be used to finance the opening up of new datasets in other areas was considered but not retained. While it could lead to a stronger data supply overall, it would risk keeping the most valuable datasets behind a paywall, and monitoring the system would be costly. Data in the transport and utilities sector ·The higher intensity option would cover public undertakings and also private entities operating on the basis of concessions in the transport and utilities sector. The full set of rules of the Directive would apply. ·The lower intensity option would cover only public undertakings. A limited set of obligations would apply: Public undertakings could continue to charge above marginal costs for dissemination and would be under no obligation to release the data they do not want to release. 2003 rules of the PSI Directive would apply (as explained in the table on p. 31). Moreover, public undertakings would not be covered by the requirements applicable to the processing of requests for the re-use of their data. The choice to limit the extension of scope only to public undertakings covered by Directive 2014/25/EU was motivated by the need to ensure legal certainty (reference to established legal definitions with related case law) and the fact that the services of general interest in the economic sectors referred to in the said Directive are typically carried out by public undertakings rather than solely by public sector bodies. Research data ·The higher intensity option would introduce in the PSI Directive a complete set of provisions to be transposed in binding national legislation mandating all researchers in the EU to make all research results – publications and research data – available in Open Access (a top-down European legislative Open Access mandate). It would define the legal re-usability of such data within the scientific community and beyond. It would thus harmonise Open Access policies that are currently defined either at national level or at the level of individual research funders. It would in particular define a common European framework on all aspects of Open Access, including embargo periods for publications, opt-outs from Open Access obligations and sanctions for researchers not complying with the Open Access mandate. The Commission Recommendation on access to and preservation of scientific information from 2012 would address accompanying measures, e.g. incentives to researchers as part of policies and legislation on scientific career, the development of relevant infrastructures and preservation. ·The lower intensity option would limit the hard law intervention through a revised PSI Directive to only cover research data (and not scientific publications) that have been made publicly available as a result of Open Access funder mandates and to ensure the legal re-usability of such research data within the scientific community and beyond. This would address the issue of quite heterogeneous licensing practices for research data, as reported also by stakeholders. It would still oblige Member States to develop policies for Open Access to research data resulting from publicly funded research, but leave flexibility on how they do this. An updated Recommendation to Member States on access to and preservation of scientific information would guide Member States on the elements ideally contained in an Open Access policy. Non-exclusivity ·The higher intensity option would prohibit arrangements that lead to the lock-in of public sector information. ·The lower intensity option would set transparency requirements for public-private agreements involving public sector information (public and transparent scrutiny of the process leading to the conclusion of the contract and publication of the actual agreement). In all scenarios the legislative update would be an occasion to clarify the relation between the PSI Directive on the one hand, and the Database and the INSPIRE Directives on the other hand. The intervention would clarify that the sui generis right included in the Database Directive cannot be exercised by public sector bodies to prevent or restrict the re-use of documents under the PSI Directive, and that the provisions of the PSI Directive, including on charging, fully apply to INSPIRE datasets. The identified options are combined into two main packages, one with all elements of lower legislative intensity, and the other one with all elements of higher legislative intensity, for the reasons described on p. 27 above. The table below gives an overview of the two packages and indicates how they would be implemented in the Directive. In order to balance the rigid dichotomy of a 'soft' and 'hard' intervention logic and to present a more realistic choice to the stakeholders, the two policy options of different levels of intensity are accompanied by a soft-law measure in the form of an updated Recommendation on access to and preservation of scientific information and by a separate Delegated Act with a list of high value datasets. The Delegated Act (part of the lower intensity option) can be seen as a bridge between the two main policy options, since it applies the solutions assessed under the 'higher intensity' scenario, albeit to a limited set of reference data. The 'intermediate' intervention action consisting of a Delegated Act with a list of high value datasets reflects the fact that the range of intervention measures cannot be easily split into two separate sets of actions along the intensity factor. At the same time, it is included as a part of the 'low intensity' policy option rather than a separate policy option in order to facilitate stakeholder feedback (and related cost/benefit assessment) and in the light of the requirement that the adoption of the Delegated Act should be preceded by a separate future Impact Assessment (i.e. an inclusion of a separate intermediate policy option at this stage would be premature). Policy options of lower and higher regulatory intervention intensity – implementation modalities in the PSI Directive

Lower intensity Higher intensity Dynamic data Binding measures: Adding a reference in the Directive to incentivise public sector bodies to make dynamic data available for re-use immediately after collection (or at least in a timeframe that does not unduly impair the exploitation of their economic potential), and to use APIs. Binding measures (intermediate intensity): There would be an obligation to use APIs for the availability of high-value datasets (see below). Binding measures: Strengthening the current rules on data formats (Article 5) by adding an obligation for public sector bodies that already produce dynamic data to make all such data available for re-use immediately after collection, and to systematically use APIs. Charging Binding measures: Stipulating that the default rule is zero charges or charges limited to the marginal costs. Limiting the range of situations under which exceptions to marginal cost charging would be possible while specifying (in line with Notice 2014/C 240/01) the eligibility of costs covered. Publishing the list of public sector bodies that could apply charges above marginal costs. Binding measures (intermediate intensity): Defining high value datasets to be released at zero charge across the EU via a Delegated Act. Binding measures: While not introducing the principle of full gratuity, eliminating the current exceptions to the rule that charges can cover at maximum the marginal costs of dissemination. Scope (research data) Binding measures: Extending the scope to publicly funded research data: - Member States would be obliged to develop policies for Open Access to research data resulting from publicly funded research, while keeping flexibility on the specific details. - For research data that already are accessible through repositories, the Directive would ensure re-usability within the scientific community and beyond. Soft law: Update of the Recommendation on Scientific Information Binding measures: Extending the scope to publicly funded research data by laying down detailed rules on Open Access (including options on how to comply, embargo periods, rules on opt-outs from Open Access obligations, enforcement). Member States would be obliged to ensure that all publicly funded research data is available in open access and fully re-usable. Soft law: Update of the Recommentation on Scientific Information Scope (data in the transport and utilities sectors): Binding measures: Extending the scope to: - public undertakings in the utilities sectors covered by Public Procurement Directive 2014/25/EU and public undertakings acting as public service operators under Regulation (EC) No 1370/2007. The default rules of the original PSI Directive (2003 rules) would apply: where data is made available for re-use, transparency, non-discrimination, maximum charges based on full-cost and reasonable return on investment, and non-exclusivity requirements would be required. Public undertakings would not be covered by the requirements applicable to the processing of requests for the re-use of their data. There would be a reference to data that should be openly available, in line with relevant sectoral EU legislation, to ensure that existing obligations are respected. Binding measures: Extending the scope to: - public undertakings in the utilities sectors covered by Public Procurement Directive 2014/25/EU and to private and public undertakings acting as public service operators under Regulation (EC) No 1370/2007; - private economic operators which have been awarded a concession, as defined in Directive 2014/23/EU, pursuing one of the activities in the transport and utilities sectors. The default rules of the PSI Directive would apply (marginal cost charging, transparency, data formats, processing of requests, etc.). There would be a reference to data that should be openly available, in line with relevant sectoral EU legislation, to ensure that existing obligations are respected. Non- exclusivity: Binding measures: Strengthen the current article on exclusive arrangements in the Directive by introducing a procedural safeguard. This would require making public (ex ante, i.e. before taking effect) the terms of arrangements with private sector players involving the re-use of public sector data where there is a risk of the lock-in of public sector data. In addition, the final text of the agreement should also be publicly available. Binding measures: Strengthen the current article on exclusive arrangements to prohibit the conclusion of agreements between the public sector bodies and private companies that may lead to the lock-in of public sector data. 5.3.Options discarded at an early stage 1) Discontinuing existing EU action This option would remove the safety net provided at the EU level by the established minimum PSI re-use rules. By leaving Member States free to act in the area previously subject to harmonised EU rules, it would give rise to increased legal uncertainty and divergence of national approaches, to the detriment of competition in the internal market for re-use of PSI, and to the detriment of the functioning of the Digital Single Market. 2) Soft law measures only While the use of this option can be a non-intrusive way of addressing the problems identified, this option was discarded based on the experience gained with the two existing soft law measures. Although they have fulfilled a useful function in providing clarity and giving a general direction to Member States, due to their non-binding character they have been taken up with different intensity in the different countries. Also, they cannot be relied upon by re-users who are looking for legal certainty. Finally, soft law measures cannot fully prevent the development of regulatory divergences among Member States. 6.What are the impacts of the policy options? 6.1.Economic and data-specific impacts of the retained options Based on the available evidence and the extensive earlier analytical work in this area, the Impact Assessment study calculated a baseline of the total direct economic value of public sector information for the EU28 of 52 billion EUR in 2018. The direct economic value is expected to increase until 2030 to 149 billion EUR (+185%). This development is expected to be triggered through different supply and demand side factors. On the supply side, an increasing number of public sector bodies is expected to open up their data due to the Directive, in addition to the increase in the re-use and value of data that is already available for re-use. On the demand side, it is expected that an increasing number of stakeholders will take advantage of more ample PSI in re-usable formats and of higher availability of APIs. As a consequence, the amount of data from various sources is expected to be higher in the future than today, while – simultaneously – its quality is expected to increase as well. This is expected to lead to an increased use of PSI by businesses, public authorities, as well as end users (through apps). Moreover, a decline of operational costs to acquire and process PSI is expected to enable businesses to develop more and better PSI-based services. This is expected to result in an increased economic value over time as the user base of PSI increases. The graph below displays the expected development of direct economic value of PSI in the lower intensity and the higher intensity scenario, compared to the baseline scenario. The first scenario (policy option 1) is based on a combination of all the lower intensity regulatory elements described above. The second scenario (policy option 2) is based on a combination of all the higher intensity regulatory elements. The estimates have been modelled as an S-curve. With specific regard to PSI, this means that at some point in the future (+/- year 2028) the economic value of PSI is expected to grow at a shrinking margin. Reasons for this can be, for example, that the most important data sources have been opened up and provided in a re-usable format. Moreover, in the saturation phase of the market, most consumers are expected to have purchased PSI-based goods and services. Therefore, the growth curve typically “flattens out” in the saturation phase of the market. Figure 4 - Impact of the different Policy Options on the direct economic value of PSI (EU28, 2018-2030)

Source: Impact Assessment Support Study, Deloitte, 2018 In 2028, i.e. the year in which the relative differences in economic value are expected to be largest between the policy options, the value could increase to: ·EUR 194 billion if the lower intensity regulatory intervention was introduced (+ EUR 142 billion, 273%); and ·EUR 215 billion if the higher intensity regulatory intervention was introduced (+ EUR 163 billion, 313%). Both scenarios are considerably better than the baseline scenario, and in terms of impact the higher intensity regulatory intervention trumps the lower intensity scenario. In terms of job creation, today 64,000 persons are employed based on PSI re-use. In 2027, i.e. the year in which the relative differences in the number of persons employed in the (data-driven) economy are expected to be largest between the policy options, the value could increase to 709,000 persons based on the lower intensity regulatory intervention and 795,000 based on the higher intensity regulatory intervention. This is considerably higher than the baseline scenario (518,000 persons employed). This figure may seem very high, but the example of Transport for London mentioned in section 2.2.4. (730 extra jobs created based on TfL data) indicates the potential for innovation and economic activity powered by open data.

As for the cost of making PSI available for re-use, under the baseline scenario it will be in the region of 3.8 billion EUR by 2030. The lower intensity intervention is expected to reduce it to almost 3 billion EUR, and the higher intensity intervention could lead to an even greater reduction to 2.5 billion EUR (approx. 21% and 34% lower than the baseline, respectively). Three main elements were taken into account in the Impact Assessment study to estimate the costs and their development: ·the number of affected stakeholders and their expected development (i.e. contracting authorities, cultural institutions, entities in the transport and utilities sectors, and research establishments); ·the expected average cost per year to open PSI per stakeholder; and ·the projected decrease of the annual costs based on the growth model applied for this study (see also Annex 8). The costs and their development in the baseline scenario are subject to two variables: the increasing number of public authorities and businesses affected by / using PSI, as well as the decline in costs based on theory and assumptions used in the growth model (see also Annex 8). Similar to the increase of the economic value of PSI, the decrease in costs to acquire and process PSI is driven by both its increased availability and use: through additional public sector bodies opening up their data, businesses are expected to be able to develop more and better PSI-based services. These services correspond to an increased need by end-users for such services which, in turn, is expected to translate into increased turnover for businesses, and better performance of public sector bodies. This does not only improve stakeholders experience with PSI but also enables investments in the quality and re-usability of PSI by public sector bodies. Thus, data provision and service development are expected to become more efficient. This is expected to translate into lowered costs for both the provision of re-usable PSI, and its acquisition and processing by businesses. 6.1.1.Baseline scenario Chapter 8.2.1. of the Impact Assessment study includes a detailed description of the trends underlying the overall estimated impact of the baseline scenario (treated for the purpose of the study as a separate policy option). For instance, apart from the beneficial effects of the legislative framework already in place, the number of companies using data is expected to steadily increase by 182% until 2030 while the share of employment in knowledge-intensive sectors is expected to increase until 2030 to about 52% of EU's total labour force. The baseline scenario does therefore present a growth curve, starting with the current total economic value of PSI of 236 billion Euro. It is expected that this value could increase to 672 billion Euro in 2030, or to EUR 150 billion in terms of direct economic impact (assuming a ratio of 3.5 – 3.8 between direct and indirect value, based on earlier studies). The following sections of the report, in line with the Impact Assessment study, assess the impact of the two policy options defined in chapter 5.2. with reference to the trends and figures presented for the baseline scenario in the current section. Despite the overall positive trend, the lack of policy reaction to the identified problems would not allow the expected benefits of open data to fully develop. For example, a mismatch between the provision of the kind of data sought after by commercial re-users (real-time data streamed via APIs, data relevant for utility sectors such as transport and energy) and the kind of data generally offered by public sector bodies can lead to the waning of interest in public datasets on the part of re-users, especially if the methods used to allow acces are outdated. While the ongoing efforts to open up data on the sectoral level (mentioned in chapter 2.2.4.1) would contribute to the overall growth of data re-use, and the associated expected benefits, the disparities in data availability and the risk of market fragmentation across the EU would not be fully addressed, e.g. in the area of charging the status quo would solidify current practices with regard to high-value datasets. Larger companies with sufficient means to acquire data would fortify their market position while the smaller commercial re-users would be forced to try to innovate on other, less attractive datasets. Similar considerations apply to the exclusivity issue. 6.1.2.Policy Option 1 - Packaged solution: lower intensity of regulatory intervention This option combines all the elements, both binding and non-binding, with the lower overall intensity of regulatory intervention. This option is likely to increase the availability of dynamic data and the use of modern dissemination tools, while taking into account the technological maturity level of the public sector body in question. A soft obligation (not applicable across the board) would have an impact on the bodies holding high value data while minimising costs for smaller entities. It would thus be a proportionate and efficient way of addressing this problem area. An obligation can, however, be introduced for a limited number of datasets. Focus on APIs The main cost-creating element of both policy packages is the implementation and maintenance of APIs. Costs involved depend on many different factors including existing data infrastructures, operational costs due to the scale of data re-use (number of API requests), as well as the data itself (number of records, size, frequency of update, etc.). Based on current software as a service (SAAS) offers it is possible to establish a range of costs depending on the size of the dataset and the number of API requests. It is very common for a high-value key dataset to reach several million of API calls per year, and in some cases several billion. Therefore, the price range from 2,400 EUR per year for up to 7.3 million API calls to 150,000 EUR per year for up to 1.2 billion API calls seems a good fit to estimate the cost of API for key datasets in EU. In the G8 Open Data Charter 14 categories of high-value datasets were identified which should be opened in high quality and through API access. A requirement to make these datasets available through APIs would imply a cost ranging from a minimum of 30,000 EUR to a maximum of 2,000,000 EUR per year for each Member State. The costs of delivering data through APIs will decrease considerably in the coming years: as the market will adapt to the demand, more and more IT systems and open data platforms will provide embedded API features by default (it is already common). Moreover, the advance of software development will make it easier and cheaper to implement an API on top of any data source. Finally, the cost of delivering data through an API is related to the cost of data infrastructures. According to the Moore’s Law, those costs will continue to decrease in the next years. As for charging, the principle of marginal costs for dissemination was established in 2013 based on the evidence presented at the time (Impact Assessment). All the arguments still hold, as verified in practice: in France, abandoning the cost-recovery model for the data held by the National Geographic Institute (NGI) led to an increase in the volume of data downloaded by 20 times and generated around 114 million EUR of benefits for the public, against a costs for the NGI of around 6 million EUR. It is clear that the direct and indirect benefits of free-of-charge re-use can be high, for all classes of stakeholders. First, a substantial lowering of charges leads to a corresponding important increase in the demand for data. Secondly, low or zero-cost charges lead to more economic activity: evidence correlates cheap data with 15% faster growth. And more economic activity leads to more tax income. It is also clear that the cost-recovery model of charging (i.e. above marginal costs) creates a market barrier . Furthermore, prices impose unnecessary transaction costs on users. Finally, free re-use is also shown to lead