EN    EN  
 EUROPEAN COMMISSION 
Brussels, 12.12.2011 
SEC(2011) 1551 final 
  
COMMISSION STAFF WORKING PAPER 
EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 
Accompanying the document 
Proposal for a 
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL_amending 
European Parliament and Council Directive 2 003/98/EC on the re-use  of public sector 
information 
{COM(2011) 877 final} 
{SEC(2011) 1552 final}  
 
EN 1   EN 1. SCOPE AND CONTEXT  
1.1. Scope 
This impact assessment focuses on whether there is  a need, in the light of developments in the 
market for the re-use of public sector inform ation (PSI), to amend the provisions of the 
Directive 2003/98/EC on the re-u se of public sector informati on (PSI Directive), which sets 
out basic conditions for the re -use of PSI throughout the EU. The Commission has taken into 
account changes on the re-u se markets, including changes br ought about by the Directive, and 
has assessed whether there are any barriers rema ining and, if so, what these are and how best 
to tackle them.  
1.2. Context 
The PSI Directive was adopted on 17 Novemb er 2003. The purpose of the legal framework 
established by the Directive is to unlock the economic potentia l of government-owned data by 
making the data available for commercial or non- commercial re-use in order to stimulate 
innovation.  
The PSI Directive is a building block of the Di gital Agenda for Europe  and the Europe 2020 
strategy for smart, sustainable and inclusive growth1. The review of the Directive is a key 
action under the Digital Agenda (1c). The econo mic importance of open data resources, 
including government data, is now widely rec ognised. For example, according to a report in 
The Economist in 2010, data have become ‘an economic raw input almost on a par with 
capital and labour’2, while the Digital Britain Fi nal Report recognises data as ‘an innovation 
currency … the lifeblood of the knowledge economy’3. However, in addition to fuelling the 
innovation and creativity that stimulate econo mic growth, open public data also make 
governments transparent, accountable and more efficient. 
A recent study estimates the total market for public sector information in 2008 at €  28 billion 
across the EU4 but that the overall economic gains from further opening up public sector 
information by allowing easy access amount to €  40 billion a year for the EU27. The total 
direct and indirect economic gains from PSI use across the whole EU27 economy would be in 
the order of €  140 billion annually5, showing clearly that there are considerable economic 
benefits from greater re-use of PSI. The challe nge is to provide the ma rket with an optimal 
legal framework to facilitate and stimulate act ual commercial and non-commercial re-use of 
public data.  
Article 13 of the Directive called for a review of the application of the Directive before 1 July 
2008. The review was carried out by the Co mmission and was published in Communication 
COM(2009) 2126. It found that, despite the progre ss made, a number of barriers still 
remained, namely attempts by public sector bodie s to maximise cost recovery as opposed to 
                                                 
1 http://ec.europa.eu/information_society/digital-agenda/index_en.htm . 
2 http://www.economist .com/node/15557443 . 
3 http://webarchive.nationalarchives.gov.uk/+/in teractive.bis.gov.uk/digitalbritain/report/ . 
4 Review of recent studies on PSI re-use and related market developments, G. Vickery, August 2011. 
5 Review of recent studies on PSI re-use and related market developments, G. Vickery July 2011, 
publication forthcoming. 
6 http://eur-lex.europa.eu/LexUriServ/LexU riServ.do?uri=COM:2009:0212:FIN:EN:PDF. 
 
EN 2   EN benefits for the wider economy, unfair compe tition practices between  the public and the 
private sector or the mindset of public sector bodies failing to realis e the economic potential. 
The Commission concluded that a further revi ew should be carried out by 2012 when more 
evidence of the impact, effects and applica tion of the Directive would be available. 
A wide-ranging public consultation on the revi ew of the Directive was conducted from 9 
September 2010 until 30 November 2010 and yielded 598 replies from all interested parties, 
including governments, public sector content ho lders (also from currently excluded sectors), 
commercial and non-commercial re-users, experts, academics and citizens. 
Responses to the consultation demonstrate that , although compared with the previous review, 
the culture of re-use has made headway in ma ny Member States, much remains to be done to 
maximise the potential of PSI re-use. In part icular, public sector bod ies and re-users alike 
called for clarification of and guidance on the charging and licensing principles and on data 
formats. Also, more re-users than PSI holders  were in favour of amending the Directive to 
make all accessible information re-usable, adop t additional measures to  open up public data 
resources, and introduce practical measures fa cilitating re-use (including asset lists of 
available documents, simplified or no licensi ng conditions and marginal cost charging). 
2. PROBLEM DEFINITION  
The following problems have been identified fo r a company seeking to develop a commercial 
online product that draws on public data  across all the EU Member States.  
2.1. Insufficient clarity and transparency 
• Re-use is still hindered by the lack of info rmation on what data are actually available, 
and by restrictive or unclear conditions  of re-use, including on pricing of 
information. 
• There is not enough certainty that a set of da ta falls within the sc ope of re-use, with 
some public sector bodies relying excessive ly on the concept of  ‘public task’ to 
restrict re-use. 
• SMEs are likely to find the process fo r obtaining permission to re-use PSI too 
complex and shelve their product for lack of  resources to follow the process through 
to its ultimate conclusion. 
2.2. Locked resources 
• The scope of the Directive currently excl udes data collected or produced by public 
broadcasters, educational and research establishments and cultural institutions. Data 
from some of them, in particular cultural public domain material, is subject to re-use, 
albeit under unregulated conditions so the rationale for the exemptions has to be 
subjected to a new cost/benefit analysis. 
2.3. Excessive charging and lack  of a level playing field 
• Re-users complain about charges being set at a level which effectively acts as a 
barrier to re-use, in particular for SMEs. 
 
EN 3   EN • Public sector bodies often misallocate co sts between their unr efined and refined 
information operations and ca nnot ensure that the prices charged to businesses 
producing refined information products for th eir unrefined information are consistent 
with those they charge internally. 
• Some public sector bodies combine the exercise of their public tasks with 
commercial revenue-raising activities, whic h is not in itself prohibited by the PSI 
Directive. When competing against the priv ate sector on the markets for products and 
services based on the PSI that they produc e and/or collect, so me of these public 
sector bodies tend to impose anti-competitive pricing and licensing conditions. 
2.4. Inconsistent approach across the Member States 
• Implementation and application of the Direc tive and progress in PS I re-use across the 
EU has been uneven. 
• The varying speed with which individual Member States implement a PSI re-use 
policy creates the risk of further fragme ntation of the internal market, to the 
detriment of businesses, consumers and citizens. 
2.5. Insufficient enforcement of re-use provisions 
• Although the Member States have general re dress systems that work, only some have 
made provision for specific authorities to hear complaints against public bodies 
infringing the rules on the re-use of PSI. 
• Re-users in most Member States face cu mbersome and lengthy proceedings that are 
ill-suited to deal with their complaints. The lack of an e ffective redress mechanism in 
some Member States (time to decision, effective competences of bodies) leads to inefficiencies on some markets with the resulting negative impacts on competition 
and innovation and, ultimately, on consumer welfare. 
3. R
ATIONALE FOR EU ACTION , EU ADDED VALUE AND SUBSIDIARITY  
The PSI Directive was adopted on the basis of Article 114 TFEU (95 TEC), as its subject 
matter covers the free circulation of services a nd the proper functioning of the internal market. 
Any amendments to the Directive shoul d thus have the same legal basis, 
The economic importance of open data, in particular government data, as a basis for new 
information services and products is now more widely recognised. While the basic framework 
for the re-use of PSI has been harmonised at EU level, some issues remain. 
First, the purpose of the Directive is to allevi ate the fragmentation of the internal market and 
to stimulate cross-border PSI-b ased products and services, sin ce discrepancies in national PSI 
regulations can prevent the smooth functioning of the internal market for PSI re-use. 
For example, action is needed at EU level, in the form of an amendment to the scope of the 
Directive, in order to guarant ee that public domain material held  by cultural establishments is 
made available for re-use in a consistent ma nner across the EU and not within the individual 
Member States alone. 
 
EN 4   EN Secondly, the aim of the legal framework establis hed by the Directive is to ensure conditions 
that will maximise the potential benefits of re-use of public data  resources in Europe. 
However, with the development of  PSI-based activities, some of  the current substantive rules 
do not reflect this objective. For example, the current charging regime is considered 
inadequate as an incentive for activities based on the re-use of public data. In addition, several 
Member States have individually moved to a ma rginal cost charging re gime, whereas others 
have maintained a cost recovery regime. Only  action at EU level in the form of binding 
harmonisation can ensure that the default char ging rule and exceptions are consistent across 
the EU in order to stimulate re-use activities. 
4. POLICY OBJECTIVES  
PSI is an important primary material for digita l content products and se rvices with a large, 
hitherto unexploited potential. The general objec tive of this EU action is to contribute to 
economic growth and job creation by improving th e conditions for the exploitation of PSI and 
facilitating the further development of the inte rnal PSI re-use market. Moreover, opening up 
of PSI for re-use will have a positive effect on the transparency, efficiency and accountability of governments and contribute to citizen empow erment. The general objec tive is fully in line 
with the horizontal EU-level strategies, in particular the Commission’ s Europe 2020 Strategy 
launched on 3 March 2010 with the aim of turning Europe ‘into a smart, sustainable and 
inclusive economy delivering hi gh levels of employment, pro ductivity and social cohesion’ . 
This general objective is broken down in to specific objectives, which are to: 
(1) Prevent distortions of competition on the EU market:  a level playing field re-
users and incumbent ‘hybrid’ public sector bodies engaging in commercial activities.  
(2) Stimulate the digital content market for PSI-based products and services:  
several conditions regarding data re-use  along the PSI exploitation chain, both 
commercial and non-commercial, must be fulf illed to stimulate economic growth and 
job creation through PSI re-use.  
(3) Stimulate cross-border exploitation of PSI: A true, thriving internal market for PSI 
re-use will not emerge unless the regulatory and practical barriers to re-use across the 
EU are removed. 
5. P
OLICY OPTIONS  
The following options are examined in the impact  assessment report (Cha pters 4 and 5): (i) no 
change to the Directive (baseline), (ii) repeal of the Directive, (iii) soft law measures, (iv) 
legislative amendments, and (v) a package solution combining soft law measures and legislative amendments. 
No policy change: no change to the Directive (baseline) 
In 2009, after the first review of  the Directive, the Commissi on concluded that the progress 
and implementation of the Directive was une ven, and identified a number of remaining 
barriers. Due to insufficient evidence on the imp act and application of the Directive, the 
Commission decided to conduct a further review by 2012 in order to consider whether 
legislative amendments were necessary, taking into consideration the progress made by the 
 
EN 5   EN Member States in the meantime. For the re-u se of PSI, this option of ‘no policy change’ 
would mean that the current provisions of  the Directive and the national transposing 
instruments remain applicable. 
Discontinuing existing EU action: repeal of the PSI Directive 
The PSI Directive has establishe d basic conditions for PSI re-u se throughout the EU and has 
brought about a change in policies and legisl ation in the Member States. Without the 
Directive, Member States would be free to re peal or amend national implementing legislation 
on PSI re-use. This particular option would effectively result in the removal of all the regulatory obligations currently co ntained in the Directive and in  the transposing instruments. 
Soft law measures 
These instruments, e.g. Commission guidelin es or recommendations , provide additional 
information and/or interpretation on some of the provisions of the PSI Directive. 
During the consultation, respondents in all categories suggested a doption of soft law measures 
for licensing models, technical formats and price calculations (inc luding for calculating 
marginal costs). Respondents also generall y called for more awareness raising actions, 
(exchange of best practices , expertise and experience). 
Legislative amendments 
This option consists of amending the substance of  the Directive, i.e. the rights and obligations 
established by its provisions. Such  legislative options include: i) extending the scope of the 
Directive to the currently excluded sectors; ii) establishing a rule for charging based on marginal costs, possibly with exceptions; ii i) amending the general principle to make 
accessible documents re-usable; iv) making it oblig atory to publish data in machine-readable 
formats; v) making it obligatory to appoint an independent regulator; vi ) reversing the burden 
of proof of compliance with charging requirements;  vii) requiring the scope of ‘public task’ to 
be defined by legislative means only. 
Package solution 
This option would combine substantive cha nges to the re-use framework (legislative 
amendments option) with additional guidance on the principles to be applied by national 
authorities when they implement it at na tional level (soft law measures option). 
6. C
OMPARISON OF POLICY OPTIONS AND IMPACTS  
Option 1  (status quo ) would increase the likelih ood of differing approaches  at national levels, 
giving rise to regulator y uncertainty and distor ting conditions of competition in the internal 
market. 
Option 2  (repeal of the Directive ) would remove the safety ne t provided at EU level by the 
minimum PSI re-use rules leading to increase d legal uncertainty and divergence of national 
approaches, to the detriment of competition and the internal market for the re-use of PSI. Repealing the Directive is also entirely in consistent with related initiatives on data 
accessibility and re-usability pursued at EU and national level. 
 
EN 6   EN Option 3  (soft law measures ), alone it would faci litate application of the rules of the PSI 
Directive on licensing and charging, but wo uld nonetheless increase the likelihood of 
divergent approaches at national level, creating regul atory uncertainty and distorting 
competitive conditions in the internal market. 
Option 4  (legislative amendments ) would establish a regulatory framework conducive to re-
use: it would broaden the scope of the Directiv e by bringing in cultural material, create an 
enforceable EU right to re-use public data, br ing down prices for the re-use of PSI, and 
enhance the effectiveness of the redress mechan ism for enforcement of the right to re-use.  
Option 5  (package of soft law measures  and legislative amendments ) shares the benefits of 
Option 4, but it would in addition make it easie r to apply the rules of the PSI Directive on 
licensing and charging. As a result, it would en sure the convergence of  national regulatory 
approaches to re-use throughout  the internal market, there by enhancing legal certainty, 
increasing incentives and lowe ring barriers to PSI re-use. 
A comparison of these different  policy options suggests that Option 5 (package of soft law 
measures and legislative amendments ) offers the best balance between promotion of PSI re-
use, harmonisation and legal certainty in the light of national circumstances and 
implementation costs. 
7. MONITORING AND EVALUATION  
The core indicator of progress towards mee ting the identified objectives is the correct 
transposition and a pplication of the PSI  Directive.  
Progress in the re-use of PSI and related polic ies across the EU will also be measured in 
accordance with indicators, which may be refined in collaboration with the Member States (as 
envisaged by the eGovernment Action Plan 2011-2015). 
The Commission will gather data through a re porting obligation for Member States, input 
from stakeholders as part of a regul ar dialogue, and independent studies. 
The Commission will review the application of  the Directive and will communicate the results 
to the European Parliament and to the C ouncil three years after the transposition date