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))
Date: 2002-12-11
Institutions: European Economic and Social Committee
Subjects: access to information, approximation of laws, data protection, dissemination of information, fixing of prices, public service

8.4.2003

EN

Official Journal of the European Union

C 85/25

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.

It

is part of

the eEurope 2002 Action Plan An
1.2.
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 docu-
ments, on 28 April 1999 (1) and 24 January 2001 (2) respect-
ively. Reference will be made to these opinions which support-
ed the Commission’s approach and put forward some sugges-
tions which the Committee would reiterate here.

mation is a key factor in economic growth, the creation of
businesses and jobs, and as an asset in meeting the challenge
of international competition.

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

Access to information means ‘not

2.2.1.
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.:

2. General and specific comments

— high-quality information in a practical

form with a

guarantee of continuity;

The Commission stresses that public sector infor-
2.1.
mation 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 infor-

— equal participation by all operators in relation to sources

of administrative information;

— the public obligation to protect freedom of access.

( 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.

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regardless of

Public sector bodies: the public sector ‘should include
2.2.2.
any body,
form, which has been
its legal
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’ (1).

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:

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

— ‘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’.

Right of access:

2.2.3.
the Committee considered ‘it
important for there to be meticulous regulation of the right of
access and exception to it’ (2) and listed the principles governing
such exceptions.

3.2. Article 4: Availability

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 docu-
ments 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.

( 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, points 3.2.1 and 3.2.2.
( 2) 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.

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

Article 5(3) stipulates that in the event of a negative
3.3.1.
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.

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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 explanatory memorandum:

The Commission outlines two models in point 4 of

— 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”’.

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’ (1).

3.4.4.
must include the following:

The Committee notes that ‘essential

information’

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

— statistical
interest;

information, reports and studies of general

— 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.

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

4. Conclusions

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

the marginal cost

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

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.

It considers, however, that in its present form the draft
4.2.
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’.

(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, point 5.2.

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4.3.
To achieve the targets set by the directive, the Com-
mittee calls on the Commission to take more account of the
proposals and suggestions presented in its opinion of 28 April
1999 (1) 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;

( 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.

Brussels, 11 December 2002.

— liability of all public bodies or institutions where deliber-
ately 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.

The President

of the European Economic and Social Committee

Roger BRIESCH

Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of
the European Parliament and of the Council on the Prohibition of Organotin Compounds on
Ships’

(COM(2002) 396 final — 2002/0149 (COD))

(2003/C 85/07)

On 30 July 2002 the Council decided to consult the European Economic and Social Committee under
Article 80 (2) of the Treaty establishing the European Community, on the above-mentioned proposal.

The Specialised 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 Dr Bredima-Savopoulou.

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

1. Background

1.1.
For many decades, organotins have been used in anti-
fouling paints on ships. Tributyltin (TBT) has been used as a
paint additive since the 1970s to prevent the fouling (e.g.
growth of tubeworms, algae, barnacles) of ship hulls and
in nets for fish farming. Their detrimental effects on the

environment were first noticed in oyster farms on the Atlantic
coast of France in the late 1970s. Since then,
increased
levels of organotins have been found world-wide in marine
organisms further up the food chain, such as fish, seabirds and
marine mammals. These chemicals have been shown to have
hormone-disrupting properties in some species, and humans
could also face health risks if they consume contaminated fish.