Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information
Date: 2003-11-17
Institutions: Council of the European Union, European Parliament
Subjects: access to information, data collection, dissemination of information, information, public sector

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DIRECTIVE 2003/98/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 17 November 2003

on the re-use of public sector information

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

(5)

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),

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 develop-
ment of wireless content services. Broad cross-border
in this
geographical coverage will also be essential
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.

Having regard to the opinion of
Regions (3),

the Committee of

the

(6)

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

Whereas:

(1)

(2)

(3)

(4)

The Treaty provides for the establishment of an internal
market and of a system ensuring that competition in the
internal market is not distorted. Harmonisation of the
rules and practices in the Member States relating to the
exploitation of public sector information contributes to
the achievement of these objectives.

The evolution towards an information and knowledge
society influences the life of every citizen in the Com-
munity, inter alia, by enabling them to gain new ways of
accessing and acquiring knowledge.

(7)

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.

The public sector collects, produces, reproduces and
disseminates a wide range of information in many areas
social, economic, geographical,
of activity,
weather, tourist, business, patent and educational infor-
mation.

such as

(8)

(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
published in the Official Journal), Council Common Position of 26
May 2003 (OJ C 159 E, 8.7.2003, p. 1) and Position of the Euro-
pean Parliament of 25 September 2003 (not yet published in the
Official Journal). Council Decision of 27 October 2003.

There are considerable differences in the rules and prac-
tices 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. Traditional practice in
public sector bodies in exploiting public sector informa-
tion has developed in very disparate ways. That should
be taken into account. Minimum harmonisation of
national rules and practices on the re-use of public
in
sector documents should therefore be undertaken,
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 devel-
opment of the information society in the Community.

Moreover, without minimum harmonisation at Com-
munity level, legislative activities at national level, which
have already been initiated in a number of Member
States in order to respond to the technological chal-
lenges, might result in even more significant differences.
The impact of such legislative differences and uncertain-
ties will become more significant with the further devel-
opment of the information society, which has already
greatly increased cross-border exploitation of informa-
tion.

A general framework for the conditions governing re-
use of public sector documents is needed in order to
ensure fair, proportionate and non-discriminatory condi-
tions for the re-use of such information. Public sector
bodies collect, produce, reproduce and disseminate docu-
ments 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 estab-
lished in this Directive, thus allowing for more extensive
re-use.

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(12)

(13)

(9)

This Directive does not contain an obligation to allow
re-use of documents. The decision whether or not to
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 sector bodies license, sell, disseminate,
exchange or give out information. To avoid cross-subsi-
dies, 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 programmes. The Directive builds on
the existing access regimes in the Member States and
does not change the national rules for access to docu-
ments. 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.
At Community level, Articles 41 (right to good adminis-
tration) and 42 of the Charter of Fundamental Rights of
the European Union recognise the right of any citizen of
the Union and any natural or legal person residing or
having its registered office in a Member State to have
access to European Parliament, Council and Commission
documents. Public sector bodies should be encouraged
to make available for re-use any documents held by
them. Public sector bodies should promote and encou-
rage 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
(92/50/EEC (1), 93/36/EEC (2)
procurement Directives
and 93/37/EEC (3) and 98/4/EC (4)). Public undertakings
are not covered by these definitions.

The time limit for replying to requests for re-use should
be reasonable and in line with the equivalent time for
requests to access the document under the relevant
access regimes. Reasonable time limits throughout the
Union will stimulate the creation of new aggregated
information products and services at pan-European level.
Once a request for re-use has been granted, public sector
bodies should make the documents available in a time-
frame that allows their full economic potential to be
exploited. This is particularly important
for dynamic
content (e.g. traffic data), the economic value of which
depends on the immediate availability of the information
and of regular updates. Should a licence be used, the
timely availability of documents may be a part of the
terms of the licence.

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. There-
fore, public sector bodies should make documents avail-
able 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 dispro-
portionate effort. To facilitate re-use, public sector bodies
should make their own documents available in a format
which, as far as possible and appropriate, is not depen-
dent on the use of specific software. Where possible and
should take into
appropriate, public sector bodies
account the possibilities for the re-use of documents by
and for people with disabilities.

(11)

This Directive lays down a generic definition of the term
‘document’, in line with developments in the information
society.
It covers any representation of acts, facts or
information — and any compilation of such acts, facts
or information — whatever its medium (written on
paper, or stored in electronic form or as a sound, visual
or audiovisual recording), held by public sector bodies.
A document held by a public sector body is a document
where the public sector body has the right to authorise
re-use.

(1) OJ L 209, 24.7.1992, p. 1. Directive as last amended by Commis-

sion 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 Commis-

sion Directive 2001/78/EC.

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

(14) Where charges are made, the total income should not
exceed the total costs of collecting, producing, reprodu-
cing and disseminating documents,
together with a
reasonable return on investment, having due regard to
the self-financing requirements of the public sector body
concerned, where applicable. Production includes crea-
tion and collation, and dissemination may also include
user support. Recovery of costs, together with a reason-
able return on investment, consistent with applicable
accounting principles and the relevant cost calculation
method of the public sector body concerned, constitutes
an upper limit to the charges, as any excessive prices
should be precluded. 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.

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(15)

Ensuring that the conditions for re-use of public sector
documents are clear and publicly available is 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 appro-
priate, of available documents so as to promote and
facilitate requests for re-use. Applicants for re-use of
documents should be informed of available means of
redress relating to decisions or practices affecting them.
This will be particularly important for SMEs which may
not be familiar with interactions with public sector
bodies from other Member States and corresponding
means of redress.

(16) Making public all generally available documents held by
the public sector — concerning not only the political
process but also the legal and administrative process —
is a fundamental instrument for extending the right to
knowledge, which is a basic principle of democracy. This
objective is applicable to institutions at every level, be it
local, national or international.

(17)

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 of documents, guaranteeing non-alteration and the
If public sector bodies
acknowledgement of source.
license documents for re-use,
the licence conditions
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.

(18)

If the competent authority decides to no longer make
available certain documents for
to cease
it should make these deci-
updating these documents,
sions publicly known, at the earliest opportunity, via
electronic means whenever possible.

re-use, or

(19)

categories of

re-use. This
the exchange of

Conditions for re-use should be non-discriminatory for
for
comparable
should,
example, not prevent
information
between public sector bodies free of charge for the exer-
cise 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.

(20)

Public sector bodies should respect competition rules
when establishing the principles for re-use of documents
avoiding as far as possible exclusive agreements between
themselves and private partners. However,
in order to
provide a service of general economic interest, an exclu-
sive 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.

(21)

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
individuals with
October 1995 on the protection of
regard to the processing of personal data and of the free
movement of such data (1).

(22)

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
these rights in any way beyond the
the exercise of
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 on the protection of intellectual property
rights, in particular the Berne Convention for the Protec-
tion of Literary and Artistic Works (the Berne Conven-
tion) 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.

(23)

Tools that help potential re-users to find documents
available for re-use and the conditions for re-use can
facilitate considerably the cross-border use of public
sector documents. Member States
should therefore
ensure that practical arrangements are in place that help
re-users in their search for documents available for re-
use. Assets lists, accessible preferably online, of main
documents (documents that are extensively re-used or
that have the potential to be extensively re-used), and
portal sites that are linked to decentralised assets lists are
examples of such practical arrangements.

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

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(24)

(25)

This Directive is without prejudice to Directive 2001/29/
EC of the European Parliament and of the Council of 22
May 2001 on the harmonisation of certain aspects of
copyright and related rights in the information society (1)
and Directive 96/9/EC of the European Parliament and
of the Council of 11 March 1996 on the legal protection
of databases (2). It spells out the conditions within which
public sector bodies can exercise their intellectual prop-
erty rights in the internal
information market when
allowing re-use of documents.

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 by private companies for added-value infor-
mation products and services and to limit distortions of
competition on the Community market, cannot be suffi-
ciently achieved by the Member States and can therefore,
in view of the intrinsic Community scope and impact of
the said action, be better 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 proportion-
ality, 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,
further disparities
between the Member States in dealing with the re-use of
public sector documents,

avoiding

thereby

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

GENERAL PROVISIONS

Article 1

Subject matter and scope

This Directive

establishes a minimum set of

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

2.

This Directive shall not apply to:

(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;

(b) documents for which third parties hold intellectual prop-

erty rights;

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

(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,

— statistical or commercial confidentiality;

(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 establishments,
such as schools, universities, archives, libraries and research
facilities including, where relevant, organisations established
for the transfer of research results;

(f) documents held by cultural

such as
museums, libraries, archives, orchestras, operas, ballets and
theatres.

establishments,

3.
This Directive builds on and is without prejudice to the
existing access regimes in the Member States. This Directive
shall not apply in cases in which citizens or companies have to
prove a particular interest under the access regime to obtain
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.

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

Article 2

Definitions

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

1.

‘public sector body’ means the State, regional or local autho-
rities, bodies governed by public law and associations
formed by one or several such authorities or one or several
such bodies governed by public law;

2.

‘body governed by public law’ means any body:

(a) established for the specific purpose of meeting needs in
the general interest, not having an industrial or commer-
cial character; and

(b) having legal personality; and

(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;

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3.

‘document’ means:

(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 docu-
ments held by public sector bodies, for commercial or non-
commercial purposes other than the 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;

5.

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

Article 3

General principle

Member States shall ensure that, where the re-use of documents
held by public sector bodies is allowed, these documents shall
be re-usable for commercial or non-commercial purposes in
accordance with the conditions set out in Chapters III and IV.
Where possible, documents shall be made available through
electronic means.

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 appli-
cant within a reasonable time that is consistent with the time-
frames laid down for the processing of requests for access to
documents.

2. Where no time limits or other rules regulating the timely
provision of documents have been established, public sector
bodies shall process the request and shall 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.

In the event of a negative decision, the public sector
3.
bodies shall communicate the grounds for refusal to the appli-
cant on the basis of the relevant provisions of the access regime
in that Member State or of the national provisions adopted
pursuant to this Directive, in particular 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

1.
Public sector bodies shall make their documents available
through electronic
in any pre-existing format or language,
means where possible and appropriate. This shall not imply an
obligation for public sector bodies to create or adapt docu-
ments 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.

On the basis of this Directive, public sector bodies cannot
2.
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

production,

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

reproduction

and

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Article 7

Transparency

Article 11

Prohibition of exclusive arrangements

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. On request, the public sector body shall indi-
cate the calculation basis for the published charge. The public
sector body in question shall also indicate which factors will be
taken into account in the calculation of charges for atypical
cases. Public sector bodies shall ensure that applicants for re-
use of documents are informed of available means of redress
relating to decisions or practices affecting them.

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 shall not unnecessarily restrict possibilities for re-use
and shall not be used to restrict competition.

In Member States where licences are used, Member States
2.
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.

Article 9

Practical arrangements

Member States shall ensure that practical arrangements are in
place that facilitate the search for documents available for re-
use, such as assets lists, accessible preferably online, of main
documents, and portal sites that are linked to decentralised
assets lists.

CHAPTER IV

NON-DISCRIMINATION AND FAIR TRADING

Article 10

Non-discrimination

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

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

2.
However, where an exclusive right is necessary for the
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 31 December
2008.

CHAPTER V

FINAL PROVISIONS

Article 12

Implementation

Member States shall bring into force the laws, regulations and
administrative provisions necessary to comply with this Direc-
tive by 1 July 2005. They shall forthwith inform the Commis-
sion thereof.

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

Article 13

Review

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.

1.
The Commission shall carry out a review of the applica-
tion of this Directive before 1 July 2008 and shall communi-
cate the results of this review, together with any proposals for
modifications of the Directive, to the European Parliament and
the Council.

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The review shall

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

Article 15

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 17 November 2003.

Article 14

Entry into force

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

For the Parliament

P. COX

The President

For the Council

G. ALEMANNO

The President