Opinion of the Economic and Social Committee on 'Public sector information: a key resource for Europe - Green Paper on public sector information in the information society'
Date: 1999-04-28
Institutions: European Economic and Social Committee
Subjects: access to information, administrative transparency, confidentiality, dissemination of EU information, information policy

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substances concerned, while respecting the confidential nature
of any proprietary data, and suggests that such summaries

should be included in the annual report of the European
Agency for the Evaluation of Medicinal Products.

Brussels, 28 April 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI

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

(1999/C 169/12)

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

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

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

1.

Introduction

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

Encouraging a policy of

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

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

The European Council meetings in Birmingham and
1.4.
Edinburgh in the course of 1992, again urged the Commission
to continue its work on improving access to the information

available to the Community institutions. The Commission, for
its part, adopted Communication 93/C 156/05 (1) on public
access to the institutions’ documents, which contained the
results of a study on citizens’ access to documents in the
individual Member States and concluded that better access to
documents should be developed at Community level; this was
followed up by Communication 93/C 166/04 (2) on openness
in the Community, setting out the basic principles governing
access to documents.

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

(1) COM(93) 191 final: Public Access to the Institutions’ Documents
the Parliament and the

— Communication to the Council,
Economic and Social Committee

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

(3) OJ L 340, 31.12.1993, p. 43-44: Council Decision of 20

December 1993 on public access to Council documents.

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1.6.
Article 191a of the Treaty of Amsterdam lays down
that every citizen of the Union has the right of access to the
documents of the European Parliament, the Council and the
Commission, subject to certain principles and conditions (1).

to public sector information must therefore be rapid and
straightforward throughout Europe, to promote the competi-
tiveness of European businesses that use public sector infor-
mation in their countries.

2. Contents of the green paper

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

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

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

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

2.5.
The green paper maintains that links must be forged
between the three main players in the information chain: the
public sector, the private sector and the general public. Access

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

1. Any citizen of the Union, and any natural or legal person
residing or having its registered office in a Member State, shall
have a right of access to European Parliament, Council and
Commission documents, subject to the principles and the con-
ditions to be defined in accordance with paragraphs 2 and 3.
2. General principles and limits on grounds of public or private
interest governing this right of access to documents shall be
determined by the Council, acting in accordance with the pro-
cedure referred to in Article 189b within two years of the entry
into force of the Treaty of Amsterdam.
3. Each institution referred to above shall elaborate in its own
Rules of Procedure specific provisions regarding access to its
documents.

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

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

2.7.1.
following areas:

The divergences noted by the green paper are in the

— the definition of the public sector and its scope,

— right of access,

— time, quantity and format,

— the pricing of public sector information,

— competition,

— protection of privacy,

— inventories and directories of public sector information,

— liability,

— appropriate Community action.

3. General comments

3.1. Preliminary considerations

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

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

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

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3.1.2.
information involves:

The Committee considers that access to public sector

3.3. The existence of barriers at European level

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

— equal participation by all operators in relation to sources

of administrative information,

— the public obligation to protect freedom of access.

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

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

3.2. Definition of the public sector

3.2.1.
It is difficult to exclude altogether any of the three
criteria listed in the green paper (functional, legalist/institution-
al or financial approach). At all events, the sector should
include any body, regardless of its legal form, which has been
commissioned, by decision of a public authority and under its
control, to carry out a service of public benefit, and which
has for that purpose greater powers than would apply to
transactions between individuals (1).

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

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

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

(1) ECJ: Case C-188/89 Section 20 (‘Foster Judgment’).

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

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

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

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

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

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

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

4. Large data bases (information on information)

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

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5. Pricing policies

7. Data bases

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

At all events, a distinction must be drawn between
5.2.
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.

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

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

— Copyright can become a source of income for public sector

bodies.

6. Activities of public sector bodies in the information

market

8. Respect for privacy

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

6.2.
All information activities which do not derive from
civil service tasks or the provision of public-interest services
must be made subject to the provisions of the Treaty, and
especially the provisions on competition, to the extent that the
application of those provisions does not constitute a de facto
or de jure obstacle to performance of the specific task entrusted
to the public sector bodies concerned (1).

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

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

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

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

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

8.3.
The Committee takes the view that access for commer-
cial interests to personal data held by the public sector cannot
be justified in any case which is not covered by the rules
adopted, in particular, in the Directive on the protection of
individuals with regard to the processing of personal data and
on the free movement of such data (Directive 95/46/EC) (2)
and the Directive concerning the processing of personal data
and the protection of privacy in the telecommunications sector
(Directive 97/66/EC) (3).

9. Liability regimes

The existence of different liability regimes in the Member
States can constitute an obstacle to access to, or exploitation

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

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

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

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

access

Committee’s view the very minimum to be considered should
contain the principles set out in point 3.3.3.

11. Priority actions at European level

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

The Committee regards as inadequate the policies so far
pursued by the institutions on the scope of access to and
exploitation of information, and thinks it necessary to go
further in the direction taken by the Decisions already adopted
by the Council and the Commission and initiated by this green
paper,
in order to guarantee maximum transparency for
citizens and the competitiveness of European firms. In the

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

Brussels, 28 April 1999.

The President

of the Economic and Social Committee

Beatrice RANGONI MACHIAVELLI