Common Position (EC) No 38/2003 of 26 May 2003 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a directive of the European Parliament and of the Council on the reuse of public sector documents
Date: 2003-05-26
Institutions: Council of the European Union
Subjects: access to information, approximation of laws, data protection, dissemination of information, fixing of prices, public service

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I

(Information)

COUNCIL

COMMON POSITION (EC) No 38/2003

adopted by the Council on 26 May 2003

with a view to adopting Directive 2003/. . ./EC of the European Parliament and of the Council of
. . . on the re-use of public sector documents

(2003/C 159 E/01)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 95 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Economic and
Social Committee (2),

Having regard to the opinion of
Regions (3),

the Committee of

the

Acting in accordance with the procedure set out in Article 251
of the Treaty (4),

Whereas:

(1) The Treaty provides for the establishment of an internal
market and of a system ensuring that competition in the
the
internal market
rules and practices in the Member States relating to the
exploitation of public sector information contributes to
the achievement of these objectives.

is not distorted. Harmonisation of

(2) The evolution towards an information and knowledge
every citizen in the
inter alia, by enabling them to gain new

society influences
Community,
ways of accessing and acquiring knowledge.

life of

the

(1) OJ C 227 E, 24.9.2002, p. 382.
(2) OJ C 85, 8.4.2003, p. 25.
(3) OJ C 73, 26.3.2003, p. 38.
(4) Opinion of the European Parliament of 12 February 2003 (not yet
Journal), Council Common Position of
published in the Official
26 May 2003 (not yet published in the Official
Journal) and
Decision of the European Parliament of . . . (not yet published in
the Official Journal).

(3) Digital content plays an important role in this evolution.
Content production has given rise to rapid job creation in
recent years and continues to do so. Most of these jobs are
created in small emerging companies.

(4) The public sector collects, produces,

reproduces and
disseminates a wide range of information in many areas
economic, geographical,
of
weather,
educational
patent
information.

business,

such as

activity,

tourist,

social,

and

(5) One of

the principal aims of

the establishment of an
internal market is the creation of conditions conducive
to the development of Community-wide services. Public
sector information is an important primary material for
digital content products and services and will become an
even more important content resource with the devel-
opment of wireless content services. Broad cross-border
in this
geographical
context. Wider possibilities of
re-using public sector
information should inter alia allow European companies
to exploit
its potential and contribute to economic
growth and job creation.

coverage will also be essential

(6) There are considerable differences

in the rules and
practices in the Member States relating to the exploitation
of public sector information resources, which constitute
barriers to bringing out the full economic potential of
this key document resource. Minimum harmonisation of
national rules and practices on the re-use of public sector
documents should therefore be undertaken, in cases where
the differences in national regulations and practices or the
absence of clarity hinder the smooth functioning of the
internal market and the proper development of
the
information society in the Community.

(7) Moreover,

without minimum harmonisation
legislative activities at national

at
Community level,
level,
which have already been initiated in a number of
Member States in order to respond to the technological
challenges, might
significant
differences. The impact of such legislative differences and
uncertainties will become more significant with the further
development of the information society, which has already
greatly increased cross-border exploitation of information.

in even more

result

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(8) A general framework for the conditions governing re-use
of public sector documents is needed in order to ensure
fair, proportionate and non-discriminatory conditions for
the re-use of such information. Public sector bodies collect,
produce, reproduce and disseminate documents to fulfil
their public tasks. Use of such documents for other
reasons constitutes a re-use. Member States' policies can
go beyond the minimum standards established in this
Directive, thus allowing for more extensive re-use.

license,

sector bodies

(9) This Directive does not contain an obligation to allow
to
re-use of documents. The decision whether or not
authorise re-use will remain with the Member States or
the public sector body concerned. This Directive should
apply to documents that are made accessible for re-use
when public
sell, disseminate,
information. To avoid cross-
exchange or give out
subsidies, re-use should include further use of documents
within the organisation itself for activities falling outside
the scope of its public tasks. Activities falling outside the
public task will typically include supply of documents that
are produced and charged for exclusively on a commercial
basis and in competition with others in the market. The
definition of ‘document’ is not intended to cover computer
programs. The Directive builds on the existing access
regimes in the Member States and does not change the
national rules for access to documents. It does not apply
in cases in which citizens or companies can, under the
relevant access regime, only obtain a document if they can
prove a particular interest. Public sector bodies should be
encouraged to make available for re-use any documents
held by them. Public sector bodies should promote and
encourage re-use of documents, including official texts of a
legislative and administrative nature in those cases where
the public sector body has the right to authorise their
re-use.

(10) The definitions of ‘public sector body’ and ‘body governed
by public law’ are taken from the public procurement
(92/50/EEC (1), 93/36/EEC (2), 93/37/EEC (3)
directives
and 98/4/EC (4)). Public undertakings are not covered by
these definitions.

(11) This Directive proposes a generic definition of the term
‘document’, in line with developments in the information
society.
facts or
It covers any representation of acts,
information — and any compilation of such acts, facts
or
its medium (written on
paper, or stored in electronic form or as a sound, visual
or audiovisual recording), held by public sector bodies. A

information — whatever

(1) OJ L 209, 24.7.1992, p. 1. Directive as

last amended by
Commission Directive 2001/78/EC (OJ L 285, 29.10.2001, p. 1).
(2) OJ L 199, 9.8.1993, p. 1. Directive as last amended by Commission

Directive 2001/78/EC.

(3) OJ L 199, 9.8.1993, p. 54. Directive as

last amended by

Commission Directive 2001/78/EC.

(4) OJ L 101, 1.4.1998, p. 1.

document held by a public sector body is a document
where the public sector body has the right to authorise
re-use.

(12) The time limit for replying to requests for re-use should be
time for
reasonable and in line with the equivalent
the relevant
requests
access regimes, in order to stimulate the creation of new
aggregated
at
pan-European level.

the document under

information

to access

products

services

and

(13) The possibilities for re-use can be improved by limiting
the need to digitise paper-based documents or to process
digital files to make them mutually compatible. Therefore,
public sector bodies should make documents available in
any pre-existing format or language, through electronic
means where possible and appropriate. Public sector
bodies should view requests for extracts from existing
documents favourably when to grant such a request
would involve only a simple operation. Public sector
bodies should not, however, be obliged to provide an
extract from a document where this involves dispropor-
tionate effort.

reasonable

together with a

also include user

(14) This Directive recognises that certain public sector bodies
are required to be self-financing in whole or in part and
depend on the income from sales of their documents to
fulfil their public task effectively. This Directive therefore
allows public sector bodies to recover
total costs of
reproducing and disseminating
collecting, producing,
documents,
return on
investment. Production includes creation and collation,
and dissemination may
support.
Recovery of costs, together with a reasonable return on
investment, constitutes an upper limit to the charges, as
any excessive prices should be precluded. Member States
or public sector bodies may choose the most appropriate
cost calculation method, in line with the accounting prin-
ciples applicable to the public sector bodies involved. The
upper limit for charges set in this Directive is without
prejudice to the right of Member States or public sector
bodies to apply lower charges or no charges at all, and
Member States should encourage public sector bodies to
make documents available at charges that do not exceed
the marginal costs for reproducing and disseminating the
documents.

are

clear

available

and publicly

(15) Ensuring that the conditions for re-use of public sector
documents
a
pre-condition for the development of a Community-wide
information market. Therefore all applicable conditions for
the re-use of the documents should be made clear to the
potential re-users. Member States should encourage the
creation of indices accessible on line, where appropriate,
of available documents so as to promote and facilitate
requests for re-use.

is

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(16) In some cases the re-use of documents will take place
without a licence being agreed. In other cases a licence
will be issued imposing conditions on the re-use by the
licensee dealing with issues such as liability, the proper use
guaranteeing non-alteration and the
of documents,
acknowledgement of
sector bodies
If public
license documents
the licence conditions
re-use,
should be fair and transparent. Standard licences that are
available online may also play an important role in this
respect. Therefore Member States should provide for the
availability of standard licences.

source.

for

(17) Conditions for re-use should be non-discriminatory for
should,
for
categories of
comparable
information
example, not prevent
the
the
between public sector bodies free of charge for
exercise of public tasks, whilst other parties are charged
for the re-use of the same documents. Neither should it
prevent the adoption of a differentiated charging policy for
commercial and non-commercial re-use.

re-use. This
exchange of

(18) Public sector bodies should respect competition rules
when establishing the principles for re-use of documents
avoiding as far as possible exclusive agreements between
in order to
themselves and private partners. However,
provide
an
interest,
economic
exclusive right to re-use specific public sector documents
may sometimes be necessary. This may be the case if no
commercial publisher would publish the information
without such an exclusive right.

a service of general

(19) This Directive should be implemented and applied in full
compliance with the principles relating to the protection
of personal data in accordance with Directive 95/46/EC of
the European Parliament and of the Council of 24 October
1995 on the protection of individuals with regard to the
processing of personal data and of the free movement of
such data (1).

(20) The intellectual property rights of third parties are not
affected by this Directive. For the avoidance of doubt,
the term ‘intellectual property rights’ refers to copyright
and related rights only (including sui generis forms of
protection). This Directive does not apply to documents
covered by industrial property rights, such as patents,
registered designs and trademarks. The Directive does
not affect
intellectual
the existence or ownership of
property rights of public sector bodies, nor does it limit
the exercise of
these rights in any way beyond the
boundaries set by this Directive. The obligations imposed
by this Directive should apply only insofar as they are
compatible with the provisions of international agreements

intellectual property rights,

in
on the protection of
particular the Berne Convention for the Protection of
Literary and Artistic Works (the ‘Berne Convention’) and
the Agreement on Trade-Related Aspects of Intellectual
Property Rights (‘the TRIPS Agreement’). Public sector
bodies should, however, exercise their copyright
in a
way that facilitates re-use.

prejudice

is without
the European Parliament and of

to Directive
(21) This Directive
2001/29/EC of
the
Council of 22 May 2001 on the harmonisation of
certain aspects of copyright and related rights in the
information society (2) and Directive 96/9/EC of
the
European Parliament and of the Council of 11 March
1996 on the legal protection of databases (3).
It spells
out the conditions within which public sector bodies can
exercise their intellectual property rights in the internal
information market when allowing re-use of documents.

by

for

private

companies

(22) Since the objectives of the proposed action, namely to
facilitate the creation of Community-wide information
products and services based on public sector documents,
to enhance an effective cross-border use of public sector
documents
added-value
information products and services and to limit distortions
of competition on the Community market, cannot be
sufficiently achieved by the Member States and can
therefore, in view of the intrinsic Community scope and
impact of
achieved at
Community level, the Community may adopt measures,
in accordance with the principle of subsidiarity as set
out in Article 5 of the Treaty. In accordance with the
principle of proportionality, as set out in that Article,
this Directive does not go beyond what is necessary in
order to achieve those objectives. This Directive should
achieve minimum harmonisation,
avoiding
further disparities between the Member States in dealing
with the re-use of public sector documents,

said action, be better

thereby

the

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

This Directive

1.
rules
governing the re-use of existing documents held by public
sector bodies of the Member States.

establishes a minimum set of

(1) OJ L 281, 23.11.1995, p. 31.

(2) OJ L 167, 22.6.2001, p. 10.
(3) OJ L 77, 27.3.1996, p. 20.

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2.

This Directive shall not apply to:

formed by one or several such authorities or one or
several such bodies governed by public law;

(a) documents the supply of which is an activity falling outside
the scope of the public task of the public sector bodies
concerned as defined by law or by other binding rules in
the Member State, or in the absence of such rules as
defined in line with common administrative practice in
the Member State in question;

2.

‘body governed by public law’ means any body:

(a) established for the specific purpose of meeting needs in
interest, not having an industrial or

the general
commercial character; and

(b) documents

for which third parties hold intellectual

property rights;

(b) having legal personality; and

(c) documents which are excluded from access by virtue of the
including on the

access regimes in the Member States,
grounds of:

— the protection of national security (i.e. State security),

defence, or public security,

(c)

financed, for the most part by the State, or regional or
local authorities, or other bodies governed by public
law; or subject to management supervision by those
bodies; or having an administrative, managerial or
supervisory board, more than half of whose members
are appointed by the State, regional or local authorities
or by other bodies governed by public law;

— statistical or commercial confidentiality;

3.

‘document’ means:

(d) documents held by public service broadcasters and their
subsidiaries, and by other bodies or their subsidiaries for
the fulfilment of a public service broadcasting remit;

(e) documents held by educational

and research estab-
lishments, such as schools, universities, archives,
libraries
and research facilities including, where relevant, organi-
sations established for the transfer of research results;

(f) documents held by cultural

such as
libraries, archives, orchestras, operas, ballets

establishments,

museums,
and theatres.

This Directive builds on the existing access regimes in the
3.
Member States and does not change the national rules for
to documents held by public sector bodies. This
access
in which citizens or
Directive shall not apply in cases
companies have to prove a particular
the
interest under
access regime to get access to the documents.

4.
This Directive leaves intact and in no way affects the level
of protection of individuals with regard to the processing of
personal data under the provisions of Community and national
law, and in particular does not alter the obligations and rights
set out in Directive 95/46/EC.

The obligations imposed by this Directive shall apply
5.
only insofar as they are compatible with the provisions of
international agreements on the protection of
intellectual
property rights,
in particular the Berne Convention and the
TRIPS Agreement.

Article 2

Definitions

For the purpose of this Directive the following definitions shall
apply:

1.

‘public sector body’ means the State, regional or local auth-
orities, bodies governed by public law and associations

(a) any content whatever its medium (written on paper or
stored in electronic form or as a sound, visual or audio-
visual recording);

(b) any part of such content;

4.

‘re-use’ means the use by persons or
legal entities of
documents held by public sector bodies, for commercial
or non-commercial purposes other
initial
purpose within the public task for which the documents
were produced. Exchange of documents between public
sector bodies purely in pursuit of their public tasks does
not constitute re-use;

than the

5.

‘personal data’ means data as defined in Article 2(a) of
Directive 95/46/EC.

Article 3

General principle

that, where
Member States
documents held by public sector bodies
conditions set out in chapters III and IV shall apply.

ensure

shall

the
is allowed,

re-use of
the

CHAPTER II

REQUESTS FOR RE-USE

Article 4

Requirements applicable to the processing of requests for
re-use

Public sector bodies shall,

1.
through electronic means
where possible and appropriate, process requests for re-use
and shall make the document available for re-use to the
applicant or,
if a licence is needed, finalise the licence offer
to the applicant within a reasonable time that is consistent
with the timeframes laid down for the processing of requests
for access to documents.

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2. Where no time-limits or other rules regulating the timely
provision of documents have been established, Member States
shall ensure that public sector bodies process requests and
deliver the documents for re-use to the applicant or,
if a
licence is needed, finalise the licence offer to the applicant
within a timeframe of not more than 20 working days after
its receipt. This timeframe may be extended by another 20
working days for extensive or complex requests.
In such
cases the applicant shall be notified within three weeks after
the initial request that more time is needed to process it.

refusal

the relevant provisions of

In the event of a negative decision, the public sector
3.
to the
bodies shall communicate the grounds for
the
applicant on the basis of
the national
regime in that Member State or of
access
in particular
to this Directive,
provisions adopted pursuant
Article 1(2)(a),
(b) and (c), or Article 3. Where a negative
decision is based on Article 1(2)(b), the public sector body
shall include a reference to the natural or legal person who
is the rightholder, where known, or alternatively to the licensor
from which the public sector body has obtained the relevant
material.

4.
Any negative decision shall contain a reference to the
means of redress in case the applicant wishes to appeal the
decision.

5.
Public sector bodies covered under Article 1(2)(d), (e) and
(f) shall not be required to comply with the requirements of
this Article.

CHAPTER III

CONDITIONS FOR RE-USE

Article 5

Available formats

Public sector bodies shall make their documents available
1.
in any pre-existing format or language,
through electronic
means where possible and appropriate. This shall not imply
an obligation for public sector bodies to create or adapt
documents in order to comply with the request, nor shall it
imply an obligation to provide extracts from documents where
this would involve disproportionate effort, going beyond a
simple operation.

2.
On the basis of this Directive, public sector bodies cannot
be required to continue the production of a certain type of
documents with a view to the re-use of such documents by a
private or public sector organisation.

Article 6

Principles governing charging

Where charges are made, the total income from supplying and
allowing re-use of documents shall not exceed the cost of
dissemination,
collection,

reproduction

production,

and

together with a reasonable return on investment. Charges
should be cost-oriented over
the appropriate accounting
period and calculated in line with the accounting principles
applicable to the public sector bodies involved.

Article 7

Transparency

Any applicable conditions and standard charges for the re-use
of documents held by public sector bodies shall be pre-estab-
lished and published, through electronic means where possible
and appropriate. The public sector body in question shall also
indicate which factors will be taken into account in the calcu-
lation of charges for atypical cases.

Article 8

Licences

1.
Public sector bodies may allow for re-use of documents
without conditions or may impose conditions, where appro-
priate through a licence, dealing with relevant issues. These
conditions
for
re-use and shall not be used to restrict competition.

shall not unnecessarily restrict possibilities

2.
In Member States where licences are used, Member States
shall ensure that standard licences for the re-use of public
sector documents, which can be adapted to meet particular
licence applications, are available in digital format and can
be processed electronically. Member States shall encourage all
public sector bodies to use the standard licences.

CHAPTER IV

NON-DISCRIMINATION AND FAIR TRADING

Article 9

Non-discrimination

1.
Any applicable conditions for the re-use of documents
shall be non-discriminatory for comparable categories of re-use.

2.
If documents are re-used by a public sector body as input
for its commercial activities which fall outside the scope of its
public tasks, the same charges and other conditions shall apply
to the supply of the documents for those activities as apply to
other users.

Article 10

Prohibition of exclusive arrangements

The re-use of documents shall be open to all potential
1.
actors in the market, even if one or more market players
already
these
documents. Contracts or other arrangements between the
public sector bodies holding the documents and third parties
shall not grant exclusive rights.

added-value

products

exploit

based

on

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However, where an exclusive right is necessary for the
2.
provision of a service in the public interest, the validity of the
reason for granting such an exclusive right shall be subject to
regular review, and shall, in any event, be reviewed every three
years. The exclusive arrangements established after the entry
into force of
this Directive shall be transparent and made
public.

3.
Existing exclusive arrangements that do not qualify for
the exception under paragraph 2 shall be terminated at the end
of the contract or in any case not later than . . . (*).

CHAPTER V

FINAL PROVISIONS

Article 11

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this
Directive by
forthwith inform the
Commission thereof.

. . . (**). They

shall

together with any
communicate the results of
proposals for modifications of the Directive, to the European
Parliament and the Council.

this review,

The review shall

2.
in particular address the scope and
impact of this Directive, including the extent of the increase
in re-use of public sector documents, the effects of the prin-
ciples applied to charging and the re-use of official texts of a
legislative and administrative nature, as well as further possi-
bilities of improving the proper functioning of the internal
market and the development of the European content industry.

Article 13

Entry into force

This Directive shall enter into force on the day of its publi-
cation in the Official Journal of the European Union.

When Member States adopt those measures, they shall contain
a reference to this Directive or be accompanied by such a
reference on the occasion of
their official publication.
Member States shall determine how such reference is to be
made.

Article 14

Addressees

This Directive is addressed to the Member States.

Article 12

Review

Done at . . .

1.
application of

The Commission shall carry out a review of

this Directive before

. . . (***)

the
and shall

For the Parliament

The President

For the Council

The President

(*) Five years after the entry into force of this Directive.
(**) 18 months from the entry into force of this Directive.
(***) Three years from the date referred to in (*).

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STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

1. On 5 June 2002 the Commission adopted the above proposal for a Directive of the European

Parliament and the Council (1). The proposal is based on Article 95 of the Treaty.

2. The European Parliament delivered its Opinion on 12 February 2003, the Economic and Social

Committee on 11 December 2002 and the Committee of Regions on 21 November 2002.

3. The Commission forwarded its amended proposal to the European Parliament and the Council on

19 March 2003 (2).

4. On 26 May 2003 the Council adopted its common position in accordance with Article 251 of the

Treaty.

II. OBJECTIVE

The purpose of this Directive is to establish a minimum set of common rules intended to ensure that,
in relation to the re-use of public sector documents, the same basic conditions apply to all players in
the European information market, that more transparency is achieved on the conditions of re-use, and
that unjustified market distortions are removed. The degree of harmonisation is relatively modest,
leaving intact national rules governing access to public information as well as the level of data
protection in place in Member States.

III. ANALYSIS OF THE COMMON POSITION

The common position shares the overall objective of the proposal submitted by the Commission, and
also, in general terms, the proposed means of attaining that objective.

However, the text of the proposal has been reworded in the course of discussion within the Council.
Moreover, some re-structuring in the order of the articles and recitals has taken place to ensure greater
clarity and user-friendliness. The main points of
the common position which differ from the
Commission proposal are as follows:

1. The common position modifies the title of the proposed Directive by deleting the reference to
commercial exploitation and this throughout the text of the Directive itself unless needed for
specific reference. The Council considered that the term ‘re-use’ covers both commercial and
non-commercial exploitation, as indicated in Article 2.

2. The common position modifies Article 1 by adding two new paragraphs specifying the scope of the
Directive in that it neither changes the rules for access to documents held by public sector bodies in
the Member States, nor affects the protection of individuals with regard to personal data. This latter
paragraph reproduces the substance of Article 1(2)(c) of
the original proposal. The Council
considered it also appropriate to add wording to explicitly exclude from the Directive's scope
documents already excluded from access by virtue of the access regimes in the Member States.
These points have been further clarified in Recital 9.

(1) OJ C 227, 24.9.2002, p. 382.
(2) Not yet published in the Official Journal.

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3. In Article 2, the Council eliminated the definition of ‘generally accessible document’ since this would
cause unnecessary confusion in the Directive, which handles re-use of and not access to documents.
The spirit of this definition has been transferred to Article 1(3) of the common position, which
seeks to distinguish the notions of access rights (Member States' competence) and of re-use of
documents that are made accessible. On the other hand, the definition of ‘re-use’ has been elab-
orated in order to avoid ambiguity concerning the exchange of documents between public sector
bodies in pursuit of their public tasks. The definitions of the Directive have been further clarified in
the new Recitals 10 and 11.

4. Article 3 of the proposal, which concerns the general principle of the Directive, has been modified
in order to make it clearer. The new wording states the subject (Member States), the obligation
(application of the conditions in chapters III and IV) and the object (documents held by public sector
bodies the re-use of which is allowed). On the other hand, the new wording eliminates the reference
to commercial or non-commercial purposes of re-use, which has been transferred to Article 2(4) of
the common position.

5. In Article 4(2) of the common position, time-frames concerning the treatment of requests for re-use
have been specified where no time-limits or other rules regulating the provision of documents are
established in the Member States. To ensure a timely provision of documents, a time-frame of 20
working days is foreseen, extendable by another 20 working days in cases of extensive or complex
requests.

6. In Article 6 on charges, the Council has amended the wording. A reference to accounting principles
has been added to take into account the public sector bodies' practice of writing off investments
over several years. Recital 14 has been clarified in this respect too. In Article 7 of the common
position, transparency has been increased by adding wording demanding public sector bodies to
indicate not only the applicable conditions and standard charges for re-use but also the factors taken
into account in the calculation of charges for atypical cases.

7. Public sector bodies may either allow re-use without conditions, or may impose conditions where
appropriate through a licence. To take into account the different possibilities, the Council has
its common position and further clarified the text of
modified the wording in Article 8 of
Recital 16. The article now encourages all public sector bodies to use standard licences.

8. As far as exclusive arrangements are concerned, the Council added a new paragraph to Article 10
clarifying the situation concerning existing exclusive arrangements. The new paragraph sets a
time-frame for their termination in light of bringing them within the scope and effects of the
Directive.

9. In Article 12, the Council specified the aim of the review in order to ensure a full examination of

the benefits expected to be achieved by it.

The extent of increase in re-use of public sector documents, including official texts of a legislative
and administrative nature, the effects of the charging principles, as well as the further possibilities to
improve the functioning of the internal market and the development of the content industry are
specifically mentioned.

IV. EUROPEAN PARLIAMENT AMENDMENTS

1. European Parliament amendments accepted by the Commission and adopted by the Council

— Amendment 3 has been incorporated into recital 4 of the common position apart from the

proposed suppression of the reference to business area activities.

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— The Council felt that the change proposed by the Parliament in amendment 4 for recital 6 was

already covered in its first sentence.

— Amendment 34 has been incorporated into recital 14 of the common position as far as it aligns
into ‘information’ has not been

the text to Article 6. However, the change of ‘document’
accepted (see first indent of point 2 of this section).

— The Council incorporated the last part of amendment 10 into recital 9 of its common position,
although in a slightly redrafted wording. The first part of the amendment, however, could not be
accepted since it deals with access and rather than with re-use.

— The first textual change proposed in amendment 12 has been accepted by the Council. The rest

of the amendment was not considered appropriate since it refers to access.

— The substance of amendment 14 was incorporated into Article 1.2 (c) of the common position.

— The Council incorporated amendment 26 into the second paragraph of Article 9 in the common

position, apart from the change of ‘document’ into ‘information’.

— The Council accepted the principle expressed in amendment 32 specifying the review clause in
Article 12(2), but preferred a different wording. Moreover, the part of the amendment making a
reference to a recital in an article was not considered appropriate.

2. European Parliament amendments accepted by the Commission but not adopted by the

Council

— The Council has not adopted amendments 1, 27 and 28 as it

the notion of
‘information’ is too vast and that the word ‘document’ better reflects the essential concept of
the Directive and is a clearer term with regard to its implementation. To the extent they concern
the same change, other amendments of the European Parliament were not accepted either.

feels that

— The Council did not incorporate amendments 7 and 18, which the Commission only accepted in
part. The Council felt that these amendments go beyond the Directive's scope, both as regards
the references to data-gathering systems and the presentation of information.

— The Council felt that the change proposed by amendment 13 into Article 1(2)(d) is not necessary

since it defined the term ‘held by’ in recital 11 of the common position.

— The Council could not adopt the addition into Article 5(1) proposed in amendment 20, since it

was too vague and prone to cause problems in the transposition of the Directive.

— The first change proposed in amendment 21 was incorporated into Article 4(3) of the common
position albeit with a redrafted wording. The Council could not, however, accept the second
modification proposed by this amendment. It felt that presuming cases of ‘bad faith’ within a
public sector body would not be appropriate and proving eventual cases of ‘bad faith’ might
prove difficult.

— The Council did not consider it necessary to specify the right to request of review of charges
(amendment 24), which would infringe the principles set out in Article 6. This does not,
however, make the obligations of Article 6 any less binding. This is consistent with other
provisions of the common position in which specific references to appeal have not been
made either.

— The Council felt that amendment 31 was not an appropriate addition. However, the substance of
the first part of the amendment is covered in recital 15. Moreover, the substance of the second
part of the amendment is a matter to be decided by the Member States themselves.

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3. European Parliament amendments not adopted by either the Commission or the Council

— Amendments 2, 15 and 17 were not accepted since they refer to access issues and transparency
of access vis-à-vis the citizens in general, whereas the Directive concerns the re-use of
documents. The Council considered that the reference to electronic means in amendment 17
is already covered in Article 5.1 of the common position.

— Amendment 30, which would have added to Article 9 of the original proposal a legal obligation
to encourage re-use, was not accepted because it was considered much too vague with regard to
transposition and implementation. The principle of this point was taken up in the last two
sentences of recital 9 of the common position.

— The Council did not adopt amendment 33 because it considered that the principal concerns of
the European Parliament on this subject are already covered, in particular in Articles 6 and 7 of
the common position.