Opinion of the European Economic and Social Committee on the "Proposal for a Directive of the European Parliament and of the Council on the re-use and commercial exploitation of public sector documents"

(COM(2002) 207 final - 2002/0123 (COD))

(2003/C 85/06)

On 24 July 2002 the Council of the European Union decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the above-mentioned proposal.

The Section for Transport, Energy, Infrastructure and the Information Society, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 31 October 2002. The rapporteur was Mr Levaux.

At its 395th plenary session (meeting of 11 December 2002) the European Economic and Social Committee adopted the following opinion with 98 votes for and four abstentions.

1. Introduction

1.1. The draft directive establishes a minimum set of rules governing the commercial and non-commercial exploitation of documents held by public sector bodies which are generally accessible.

1.2. It is part of the eEurope 2002 Action Plan An information society for all and takes account of the reactions to the Green Paper on Public sector information: a key resource for Europe, adopted on 20 January 1999.

1.3. The Committee issued opinions on these two documents, on 28 April 1999(1) and 24 January 2001(2) respectively. Reference will be made to these opinions which supported the Commission's approach and put forward some suggestions which the Committee would reiterate here.

2. General and specific comments

2.1. The Commission stresses that public sector information is an important raw material for new services and the development of the sectors concerned, which already constitute a major market. Facilitating access to this information is a key factor in economic growth, the creation of businesses and jobs, and as an asset in meeting the challenge of international competition.

2.2. In its opinion of 28 April 1999 on Public sector information: a key resource for Europe - Green Paper on public sector information in the information society, the Committee stated the following:

2.2.1. Access to information means "not just passively making them [administrative archives and registers] available but a duty of active promotion designed to facilitate the citizen's access to high-quality information in a practical form"(3).

The Committee regrets that the Commission does not take account of the idea of "active promotion"; it therefore reiterates its suggestions and proposals aimed at making it easier to achieve the directive's objectives, i.e.:

- high-quality information in a practical form with a guarantee of continuity;

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

- the public obligation to protect freedom of access.

2.2.2. Public sector bodies: the public sector "should include any body, regardless of its legal form, which has been commissioned, by decision of a public authority and under its control, to carry out a service of public benefit ..." and "should include not only publicly-owned enterprises whose legal form is private but also private enterprises acting by virtue of administrative delegation or authorisation, in managing that aspect of public services which excludes any commercial function, and the legislative and judicial authorities"(4).

By limiting as it does the notion of "public sector bodies", the Commission lessens the impact and effectiveness of the directive.

2.2.3. Right of access: the Committee considered "it important for there to be meticulous regulation of the right of access and exception to it"(5) and listed the principles governing such exceptions.

The Committee considers that the scope of the exclusions defined in Article 1(2) and (3) of the directive excessively restricts the nature and quality of the accessible information.

The Committee notes that this applies particularly to documents which are part of the "common European cultural heritage" and are often held by public museums and public and university libraries.

As soon as it is implemented or within a reasonable period the directive should include such documents within its scope. Once they become accessible their dissemination will increase knowledge of Europe's cultural heritage, making it a source of unity, pride and a sense of belonging to Europe.

At the same time their dissemination will have a beneficial impact on cultural exchanges in Europe and artistic and educational activities, not forgetting the economic knock-on effect for local tourism.

3. Specific comments on the draft directive

3.1. Article 1: Subject matter and scope

The Committee wishes to amend paragraph 2(f).

It proposes the following wording:

- "documents held by cultural establishments (with the exception of those in receipt of public funding), such as archives, orchestras, operas, ballets and theatres, with the exception of public museums and public and university libraries which shall fall within the scope of the directive".

3.2. Article 4: Availability

The Committee thinks that users will develop new services if public sector bodies provide them with information which is adapted to changes in economic trends and published on a long-term basis.

This is why it calls for:

- the second sentence of paragraph 1 ("This does not imply an obligation for public sector bodies to create documents or to adapt documents in order to comply with the request") to be deleted.

The Committee suggests that instead the directive should encourage public sector bodies to examine requests for documents to be created or adapted and to meet such requests where they are justified by a legitimate interest (public, economic, social, cultural or educational interest, or for scientific or university research purposes).

- paragraph 2 to be amended to read as follows: "Public sector bodies must ensure that they do not stop the production of certain types of documents when these are used commonly and regularly by other public or private bodies, or else, where necessary, they must provide alternative resources".

3.3. Article 5: Time and requirements in case of a negative decision

3.3.1. Article 5(3) stipulates that in the event of a negative decision in response to a request for the re-use of public documents, the public sector bodies shall include a reference to the rightholder or licensor.

The purpose of this requirement is so that the applicant knows who to approach to obtain authorisation for use.

The Committee approves this requirement which facilitates access to and use of documents.

3.3.2. However, the Committee considers that the last sentence of paragraph 3 ("The public sector body concerned shall not be held liable in the event of such reference being incorrect") can only diminish the effectiveness of the measure in question.

The Committee therefore calls for paragraph 3 to be amended and proposes the following wording: "Where a negative decision is based solely on Article 1(2)(b), the public sector body shall include a reference to the natural or legal person who is the rightholder or to the licensor from whom the public sector body has obtained the relevant material. The public sector body concerned shall not be held liable in the event of such reference being incorrect except where incorrect information was supplied deliberately with the intention of retaining documents".

3.4. Article 6: Charging principles

3.4.1. The Commission outlines two models in point 4 of the explanatory memorandum:

- The "low-cost model", in which the charges are limited to the marginal costs for reproduction and dissemination;

- The "cost-recovery model".

The Commission states that "charging marginal costs for reproduction and dissemination leads by far to the highest economic impact and 'welfare effects'".

Logically, therefore, it would prefer the low-cost model, and the Committee shares this view.

3.4.2. In conclusion, however the Commission states that "Although it incites Member States to stimulate public sector bodies to adopt the marginal cost for reproduction and dissemination approach where possible, it leaves it to the Member States and public sector bodies to define the charging policies".

The Committee notes that Article 6 of the directive does not reflect this intention but opts for the cost-recovery model.

3.4.3. The Committee calls on the Commission to clarify its position in the explanatory memorandum and reiterates that in its abovementioned opinion on the green paper it stated that "a distinction must be drawn between information essential to citizens, especially that which relates to the exercise of democratic rights - which could be provided free of charge or, where appropriate, at a greatly reduced price - and information for commercial purposes, the price of which, as it must be readily available, should be based on the costs of printing, updating, retrieval and transmission of data, for which invoices could be issued; or it should be a reasonable market price"(6).

3.4.4. The Committee notes that "essential information" must include the following:

- constitutions, codes, laws and regulatory acts, treaties and jurisprudence emanating from the European Union;

- statistical information, reports and studies of general interest;

- legal, regulatory and political information, such as the minutes of decision-making or advisory assemblies.

Initially, "essential information" will be information from the public authorities in the Member States. Later, within a reasonable period, the Member States will be asked to make available similar documents from their public bodies on the same terms.

In this respect the Committee notes that initiatives along these lines have already been taken in some Member States. One of the most recent was in France with Decree No 2002-1064 of 7 August 2002 on "a public service for the dissemination of law via the internet", which was published in the Official Journal of the French Republic on 9 August 2002 and entered in force on 15 September 2002, and which stipulates that a whole series of documents containing "essential information" is to be made available free of charge.

4. Conclusions

4.1. The Committee supports any initiatives which facilitate the development of an "information society for all", the aim of eEurope. It therefore approves the proposed directive.

4.2. It considers, however, that in its present form the draft is short on ambition since its self-imposed limits will prevent it from attaining sufficiently quickly the objectives of a "digital, knowledge-basedeconomy[which]is a powerful engine for growth, competitiveness and jobs, while at the same time improving citizens' quality of life".

4.3. To achieve the targets set by the directive, the Committee calls on the Commission to take more account of the proposals and suggestions presented in its opinion of 28 April 1999(7) and in this opinion, in particular:

- amendment of the scope of the exclusions by stating explicitly that the directive applies to documents held by public museums and public and university libraries, Europe's common cultural heritage;

- liability of all public bodies or institutions where deliberately false or incomplete information is provided;

- charging principle which should lead to the general adoption of the "low-cost method";

- making available free of charge the "essential information" held by the public administrations of the Member States, with the ambition of extending this measure to all the public bodies of the Member States.

4.4. Finally the Committee calls on the Commission to involve the Committee in the review provided for in Article 12, when it should be possible to assess actual response times and to supplement the directive with a view to further harmonising practices and charging methods.

Brussels, 11 December 2002.

The President

of the European Economic and Social Committee

Roger Briesch

(1) See ESC opinion on Public sector information: a key resource for Europe - Green Paper on public sector information in the information society, OJ C 169, 16.6.1999.

(2) See ESC opinion on eEurope 2002 - An information society for all - draft Action Plan, OJ C 123, 25.4.2001.

(3) See ESC opinion on Public sector information: a key resource for Europe - Green Paper on public sector information in the information society, OJ C 169, 16.6.1999, point 3.1.2.

(4) See ESC opinion on Public sector information: a key resource for Europe - Green Paper on public sector information in the information society, OJ C 169, 16.6.1999, points 3.2.1 and 3.2.2.

(5) See ESC opinion on Public sector information: a key resource for Europe - Green Paper on public sector information in the information society, OJ C 169, 16.6.1999, point 3.3.3.

(6) See ESC opinion on Public sector information: a key resource for Europe - Green Paper on public sector information in the information society, OJ C 169, 16.6.1999, point 5.2.

(7) See ESC opinion on Public sector information: a key resource for Europe - Green Paper on public sector information in the information society, OJ C 169, 16.6.1999.