Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL Amending Directive 2003/98/EC on re-use of public sector information
Date: 2011-12-12
Institutions: European Commission
Subjects: access to information, data collection, dissemination of information, domestic market, information, public sector

EUROPEAN COMMISSION 

Brussels, 12.12.2011 
COM(2011) 877 final 

2011/0430 (COD) 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

Amending Directive 2003/98/EC on re-use of public sector information  

(Text with EEA relevance) 

{SEC(2011) 1551 final} 
{SEC(2011) 1552 final} 

 
 
  
 
 
EXPLANATORY MEMORANDUM 

1. 

1. 

CONTEXT OF THE PROPOSAL 

1.1. 

Grounds for and objectives of the proposal 

Directive  2003/98/EC  of  the  European  Parliament  and  the  Council  on  the  re-use  of  public 
sector information (‘PSI Directive’) was adopted on 17 November 2003. The Directive aimed 
to facilitate the re-use of PSI throughout the Union by harmonising the basic conditions for re-
use  and  removing  major  barriers  to  re-use  in  the  internal  market.  The  Directive  contains 
provisions  on  non-discrimination,  charging,  exclusive  arrangements,  transparency,  licensing 
and practical tools to facilitate the discovery and re-use of public documents. 

Article 13 of the Directive called for a review of the application of the Directive before 1 July 
2008.  The  review  was  carried  out  by  the  Commission  and  resulted  in  the  publication  of 
Communication  COM(2009)  2121.  It  found  that,  despite  the  progress  made,  a  number  of 
barriers still persisted, namely attempts by public sector bodies to maximise cost recovery, as 
opposed  to  benefits  for  the  wider  economy,  competition  between  the  public  and  the  private 
sector, practical issues hindering re-use, such as the lack of information on available PSI, and 
the mindset of public sector bodies failing to realise the economic potential. The Commission 
concluded  that  a  further  review  should  be  carried  out  by  2012,  when  more  evidence  on  the 
impact,  effects  and  application  of  the  Directive  would  be  available.  This  proposal  of  the 
Commission is the result of the second review. 

Public  sector  information  is  an  important  primary  material  for  digital  content  products  and 
services with a large hitherto unexploited potential. The general objective of this Union action 
is to contribute to economic growth and job creation by unlocking the economic potential of 
government-owned data through improved conditions for the exploitation of PSI. The general 
objective is fully in line with the Union’s horizontal strategies, in particular the Commission’s 
Europe  2020  Strategy,  launched  on  3  March  2010  with  the  aim  of  turning  Europe  ‘into  a 
smart, sustainable and inclusive economy delivering high levels of employment, productivity 
and social cohesion’. 

The  opening  up  of  PSI  for  re-use  will  also  have  a  positive  effect  on  the  transparency, 
efficiency and accountability of governments and contribute to citizen empowerment. 

Ultimately  therefore,  the  PSI  Directive  aims  to  catalyse  a  change  of  culture  in  the  public 
sector, creating a favourable environment for value-added activities resulting from the re-use 
of public information resources. 

The  regulatory  challenge  is  to  provide  the  market  with  an  optimal  legal  framework  to 
stimulate the digital content market for PSI-based products and services, including its cross-
border dimension, and to prevent distortions of competition on the Union market for the re-
use  of  PSI.  The  Commission  proposal  therefore  targets  the  chain  of  commercial  and  non-
commercial exploitation of PSI, to ensure specific conditions at different stages of the chain 
so that access is improved and re-use facilitated. 

1 

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0212:FIN:EN:PDF. 

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Data must be unlocked and made discoverable and effectively available for re-use. Financial 
and non-financial transaction costs must remain as low as possible. Re-users must have access 
to an efficient and effective redress mechanism to be able to enforce their rights. The original 
Directive  must  be  reinforced  in  order  to  overcome  the  remaining  barriers,  e.g.  lack  of 
information  about  what  data  are  actually  available,  restrictive  or  unclear  rules  governing 
access and re-use conditions, discouraging, unclear and inconsistent pricing where the re-use 
of  information  is  chargeable,  and  the  overall  excessive  complexity  of  the  process  for 
obtaining  permission  to  re-use  PSI,  in  particular  for  SMEs.  In  addition,  re-users  and 
incumbent  ‘hybrid’  public  sector  bodies  (combining  public  tasks  with  the  commercial 
exploitation of data) must enjoy a level playing field and competitive conditions unrestrained 
by  any  discriminatory  treatment  or  unjustified  exclusive  agreements  for  the  exploitation  of 
PSI.  Finally,  the  internal  market  for  PSI  re-use  will  thrive  only  if  regulatory  and  practical 
borders to re-use across the Union are removed and the same types of data are available on 
similar, if not the same, terms and conditions irrespective of their national origin. 

Benefits  to  be  gained  from  improved  access  and  facilitated  re-use  include:  innovation  in 
products based directly on PSI and in complementary products; reduced transaction costs and 
efficiency gains in the public sector; and, increasingly, the combining of different public and 
private information to produce new goods. 

1.2. 

General context 

Public  bodies  produce,  collect  or  hold  a  wealth  of  information  and  content,  ranging  from 
statistical, economic or environmental data to archival material, collections of books or works 
of  art.  The  digital  revolution  has  significantly  increased  the  value  of  this  resource  for 
innovative products or services based on data as raw material. 

The  economic  importance  of  opening  data  resources,  including  public  data,  is  now  widely 
recognised. For example, according to a 2010 report by The Economist, data have become ‘an 
economic raw input almost on par with capital and labour’2, while the Digital Britain Final 
Report  recognises  data  as  ‘an  innovation  currency …  the  lifeblood  of  the  knowledge 
economy’3. A recent study estimates the total market for public sector information in 2008 at 
 28 billion across the Union4. The same study indicates that the overall economic gains from 
further opening up public sector information by allowing easy access are around €
 40 billion a 
year for the EU27. The total direct and indirect economic gains from PSI applications and use 
across the whole EU27 economy would be in the order of €

 140 billion annually. 

Beyond  fuelling  the  innovation  and  creativity  that  stimulate  economic  growth,  open  public 
data  also  empower  citizens,  thereby  enhancing  participatory  democracy  and  promoting 
transparent, accountable and more efficient government. 

The challenge for the Directive is to provide the market with an optimal legal framework to 
facilitate  and  stimulate  the  commercial  and  non-commercial  re-use  of  public  open  data. 
Ultimately therefore, the Directive and its revision aim to catalyse a change of culture in the 
public sector, creating a favourable environment for value-added activities resulting from the 
re-use of public information resources. 

2 
3 
4 

http://www.economist.com/node/15557443. 
http://webarchive.nationalarchives.gov.uk/+/interactive.bis.gov.uk/digitalbritain/report/, p. 214. 
Review of recent studies on PSI re-use and related market developments, G. Vickery, August 2011. 

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€
                                                 
The review of the Directive thus forms part of the Digital Agenda for Europe and the Europe 
2020 strategy aiming for smart, sustainable and inclusive growth5. The review is in fact a key 
action of the Digital Agenda (key action 1c). 

1.3. 

Consistency with other policies 

1.3.1.  PSI policy and Union rules of competition 

One of the aims of the PSI Directive is to limit distortions of competition on the Union market 
and thus create a level playing field for all potential  re-users  of  PSI.  In  this  regard,  the  PSI 
Directive  contains  a  specific  formulation  of  the  more  general  Union  rules  on  competition, 
namely  Article  10(2)  —  prohibiting  cross-subsidies  —  and  Article  11  —  prohibiting,  with 
exceptions, exclusive agreements. 

1.3.2.  PSI policy and environmental policy 

The  PSI  Directive,  Directive  2003/4  on  public  access  to  environmental  information  (the 
Aarhus  Directive)  and  Directive  2007/2/EC  establishing  an  Infrastructure  for  Spatial 
Information in the EU (INSPIRE) together constitute a set of Union measures to ensure the 
widest  possible  dissemination  of  environmental  information  held  by  public  bodies.  These 
Directives, although not sharing common immediate objectives, complement one another and 
share the common objective of enhancing the transparency and availability of public data. 

The Directive on public access to environmental information contributes to greater awareness 
of environmental matters, a free exchange of views, more effective participation by the public 
in  environmental  decision-making,  and,  ultimately,  a  better  environment.  It  supports  the 
Commission’s policy on the re-use of PSI, as wide access to information is a precondition for 
its re-use, and environmental data are a very important source of information for the creation 
of new products and services. The INSPIRE Directive plays a similar role where spatial data 
are concerned. 

In  addition,  the  PSI  Directive  is  of  crucial  importance  for  the  overall  coherence  of  the 
forthcoming Shared Environmental Information System. 

1.3.3.  PSI and integrated maritime policy 

In September 2010 the Commission issued a Communication to the European Parliament and 
to the Council — Marine Knowledge 2020 — aimed  at unlocking the potential of Europe’s 
marine knowledge. Its three-pronged approach, seeking to make the use of marine data easier 
and less costly, to foster competitiveness of marine data users and to enhance understanding 
of  Europe’s  seas  and  oceans,  is  consistent  with  and  reinforces  the  Commission’s  policy 
towards the re-use of PSI. 

1.3.4.  PSI policy and common transport policy 

One  of  the  40  initiatives  put  forward  in  the  new  Transport  White  Paper6  is  the  creation  of 
framework  conditions  to  promote  the  development  and  use  of  intelligent  systems  for 

5 
6 

http://ec.europa.eu/information_society/digital-agenda/index_en.htm. 
WHITE PAPER Roadmap to a Single European Transport Area — Towards a competitive and resource 
efficient transport system. COM(2011) 144 final (28.3.2011). 

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interoperable  and multimodal  scheduling, information, online reservation systems and smart 
ticketing. 

This  initiative  is  directly  related  to  the  Action  Plan7  for  the  Deployment  of  Intelligent 
Transport Systems (ITS) for road transport and its interfaces with other modes, adopted by the 
Commission  in  December  2008,  and  to  Directive  2010/40/EU8  of  7  July  2010  on  the 
framework for the deployment of Intelligent Transport Systems in the field of road transport 
and for interfaces with other modes of transport. These two instruments aim to accelerate and 
coordinate  the  deployment  of  ITS  applications,  including  Union-wide  real-time  traffic 
information services and Union-wide travel information services. 

Under  Directive  2010/40/EU,  the  Commission  will  adopt  binding  specifications  for  ‘the 
provision  of  Union-wide  real-time  traffic  information  services’  and  for  ‘the  provision  of 
Union-wide travel information services’ to address the provision of traffic regulation data by 
the transport authorities and to guarantee access by private companies to relevant public data. 

Such specifications, but also a possible follow-up legislative proposal to ensure access to and 
re-use  of  public  transport  information,  could  contribute  significantly  to  the  Commission’s 
policy on the re-use of PSI, by giving citizens or companies the right to access and re-use road 
traffic  or  public  transport  information  for  new  products  and  services  based  on  the  highly 
dynamic content of such data. This supports the Commission’s policy on the re-use of PSI. 

1.3.5.  PSI policy and the initiative on open access to scientific information 

The Commission’s objective in the area of scientific information is to maximise the benefits 
of  information  technologies  (internet,  supercomputing  networks,  data  mining)  for  better 
access to and easier reuse of scientific knowledge. ‘Open access’ policies pursue the goal of 
making  scientific  articles  and  research  data  freely  accessible  to  the  reader  on  the  web.  The 
Commission  intends  to  take  steps  to  promote  access  to  and  preservation  of  scientific 
information, including publications and data of research projects funded by the Union budget. 

The  Commission’s  objectives  in  this  area  are  very  closely  aligned  with  those  of  the  PSI 
Directive  in  the  sense  that  both  aim  to  make  public  information  more  widely  available  in 
Europe for access and re-use. 

1.3.6.  PSI policy and policy on digitisation and cultural heritage 

The  digitisation  of  cultural  collections  promotes  access  to  culture  by  making  European 
cultural  heritage  held  by  Europe’s  cultural  institutions  —  books,  maps,  audio,  films, 
manuscripts, museum objects, etc. — more easily accessible to all for work, study and leisure. 
At  the  same  time,  digitisation  turns  these  resources  into  a  lasting  asset  for  the  digital 
economy, creating many opportunities for innovation, although the full exploitation of digital 
cultural  assets  is  still  embryonic.  Business  models  are  being  explored  and  commercial 
activities  are  just  starting.  The  goals  of  ensuring  the  wide  availability  of  public  sector 
information (PSI Directive) and placing digitised cultural assets at the disposal of creative and 
innovative businesses (digitisation policy) are entirely consistent and mutually reinforcing and 
fully comply with the European Agenda for Culture and the Council Workplan on Culture. 

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COM(2008) 886 final/2 — Corrigendum of 20.3.2009. 
OJ L207/1, 6.8.2010. 

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2. 

RESULTS  OF  CONSULTATIONS  WITH  INTERESTED  PARTIES  AND 
IMPACT ASSESSMENTS 

2.1.1.  Public consultation 

A  wide-ranging  public  online  consultation  on  the  review  of  the  Directive  was  held  in 
accordance  with  established  Commission  standards.  The  consultation  was  open  from  9 
September 2010 until 30 November 2010. It was published on the Commission’s ‘Your Voice 
in Europe’ webpage:   
(http://ec.europa.eu/yourvoice/ipm/forms/dispatch?form=psidirective2010). 

A  press  release  was  issued  upon  the  launch  of  the  open  consultation.  The  launch  was  also 
publicised on Twitter, on the Commission’s Information Society PSI Website 
(http://ec.europa.eu/information_society/policy/psi/index_en.htm)  and  on  the  ePSIplatform 
portal9. In addition, stakeholders were informed about the consultation and invited to submit 
their views through their associations or via individual email messages. All interested parties, 
including  governments,  public-sector  content  holders  (including  from  currently  excluded 
sectors),  commercial  and  non-commercial  re-users,  experts,  academics  and  citizens,  were 
invited to contribute. 

The  consultation  yielded  598  replies,  which  were  published  on  the  Commission’s  PSI 
website10.  The  responses  encompassed  all  the  various  actors  in  the  PSI  value  chain:  PSI 
content holders (8 %), other public authorities not holding any PSI (4 %), PSI re-users (13 %), 
academics and experts (23 %), citizens (48 %) and respondents identified as ‘other’ (4 %). 

An  overwhelming  majority  of  respondents  signalled  that  PSI  re-use  had  not  reached  its  full 
potential  and  supported  further  action  to  stimulate  re-use  and  promote  the  cross-border 
provision of PSI-based products and services. Many respondents favoured amendments to the 
Directive,  ranging  from  some  40 %  of  PSI  content  holders  up  to  over  70 %  of  re-users. 
Suggestions  for  legislative  amendments  and  for  additional  soft-law  guidance  did  not  differ 
significantly  among  specific  categories  of  respondents,  but  most  supported  amending  the 
general principle to establish a right to re-use and adopting additional measures (to open up 
public data resources and to facilitate re-use, e.g. asset lists of available documents, simplified 
or no licensing conditions, marginal costs, etc.). 

The question of charging also received much attention from all respondents. It is clear from 
many  submissions  that  clarification  and  guidance  are  required  on  many  charging  issues, 
including charging strategies versus free access, as well as the admissible tariffs. Charging for 
re-use  based  on  either  full  or  partial  cost  recovery  was  not  supported  by  stakeholders. 
Frequently,  respondents  called  for  either  a  ban  on  charging  or  clarification  of  the  term  of 
‘reasonable  return  on  investment’.  Most  supported  free  non-commercial  re-use.  Many 
arguments  for  and  against  the  marginal  costs  solution  were  advanced  by  respondents  in  all 
categories, and there is no consensus on this point. 

Finally, respondents across all sectors generally called for support and deployment measures 
to  promote  PSI  re-use,  including  across  borders.  These  measures  range  from  guidance  on 
many topics (licensing, charging, data quality) to support for the development of national data 
portals and for a European single access point to data. 

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10 

http://www.epsiplatform.eu/. 
http://ec.europa.eu/information_society/policy/psi/index_en.htm. 

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In summary, responses to this consultation demonstrate that, compared with the 2009 review, 
the culture of re-use has advanced in many Member States (in particular the UK, France, and 
Denmark). However, much remains to be done to maximise the potential of PSI re-use and to 
fully  exploit  the  rules  established  by  the  2003  PSI  Directive,  several  provisions  of  which 
require  amendment  or  clarification.  In  addition,  the  lack  of  consensus  or  trends  among 
respondents with respect to the issue of charging for the re-use of PSI demonstrates that no 
one-size-fits-all solution will do and differences in the needs of both PSI holders and PSI re-
users must be taken into account in order not to inhibit data re-use. 

The responses received were taken into account in the assessment of options that led  to the 
package of legislative and soft-law measures included in this proposal. 

2.1.2.  Collection and use of expertise 

Over  the  last  few  years,  the  Commission  has  conducted  the  following  studies  to  assess  the 
different  aspects  of  the  PSI  re-use  market,  including  its  economic  valuation:  MEPSIR 
(Measuring  European  Public  Sector  Information  Resources)11,  study  on  Exclusive 
Agreements12,  Economic  Indicators  and  Case  Studies  on  PSI  pricing  models13,  study  on 
pricing  models  for  PSI  (Deloitte,  not  yet  published),  study  on  the  market  value  of  PSI 
(Vickery, not yet published), study on the re-use of cultural material14. 

The  studies  measured  the  re-use  of  PSI  in  the  Member  States,  estimated  the  overall  market 
size  for  PSI  in  the  Union  (in  2006  and  2010-2011),  assessed  the  existence  of  possible 
exclusive  agreements  concluded  by  public  sector  bodies  under  Article  11  of  the  Directive, 
provided  insight  into  current  PSI  developments  in  Member  States,  recommended  economic 
indicators  to  measure  PSI  re-use,  assessed  different  models  of  supply  and  charging  for  PSI, 
and  provided  an  overview  of  the  re-use  of  PSI  in  the  cultural  sector.  The  results  of  these 
studies have provided valuable economic data to determine the most appropriate options for 
revision of the PSI Directive. 

In addition, the Commission has obtained important legal analysis from research undertaken 
within  the  LAPSI15  (Legal  Aspects  of  Public  Sector  Information)  thematic  network,  which 
looked  into  the  legal  implications  of  specific  issues  involving  the  re-use  of  PSI  such  as 
exceptions to a default rule for charging marginal costs, the concept of ‘public task’ and non-
discrimination,  whether  or  not  public  undertakings  should  be  covered  by  the  PSI  Directive, 
and licensing conditions. 

Finally,  further  data  have  been  gathered  through  networking,  cooperation,  coordination  and 
awareness-raising activities with Member States and stakeholders. The ePSIplatform provides 
wide-ranging PSI data from across the Union16. 

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12 

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http://ec.europa.eu/information_society/policy/psi/actions_eu/policy_actions/mepsir/index_en.htm. 
http://ec.europa.eu/information_society/policy/psi/facilitating_reuse/exlusive_agreements/ 
index_en.htm. 
http://ec.europa.eu/information_society/policy/psi/docs/pdfs/economic_study_report_final.pdf. 
http://tinyurl.com/culturePSI. 
http://www.lapsi-project.eu/. 
http://www.epsiplatform.eu/. 

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2.1.3. 

Impact assessment 

The  impact  assessment  examined  5  options  to  deal  with  the  identified  problems,  i.e. 
insufficient  clarity  and  transparency  of  PSI  re-use  rules,  locked  information  resources, 
excessive charges, lack of a level playing field, insufficient enforcement of re-use provisions, 
and inconsistent approaches adopted by individual Member States. Apart from repealing the 
Directive, the options broadly fall into two categories, i.e. options involving maintaining the 
current provisions and options involving  changes ranging from simple technical ‘tweaks’ to 
substantial amendment of the provisions. 

Option 1: No policy change: no changes to the Directive (baseline) 

For the re-use of public sector information, this option of ‘no policy change’ would mean that 
the  current  provisions  of  the  Directive  and  the  national  transposing  instruments  remain 
applicable. 

Option 2: Discontinuing existing Union action: repeal of the PSI Directive 

The PSI Directive has set the basic conditions for PSI re-use throughout the Union and has led 
to a change in policies and legislation in the Member States. Without the Directive, Member 
States would be free to repeal or amend national implementing legislation for PSI re-use. This 
would effectively result in the removal of all the regulatory obligations currently contained in 
the Directive and in the transposing instruments. 

Option 3: Soft law measures 

These  instruments,  e.g.  Commission  guidelines  or  recommendations,  provide  additional 
information  and/or  interpretation  of  some  of  the  provisions  of  the  PSI  Directive.  Soft  law 
measures  would  include  e.g.  recommended  licensing  provisions,  guidance  on  technical 
formats, or guidance on price calculations (including for calculating marginal costs). 

Option 4: Legislative amendments 

This option consists of amending the substance of the Directive, i.e. the rights and obligations 
established  by  its  provisions.  This  includes:  i)  extension  of  the  scope  of  the  Directive  to 
currently excluded sectors (cultural, educational and research establishments as well as public 
service  broadcasters);  ii)  establishing  a  rule  for  charging  based  on  marginal  costs,  possibly 
with exceptions; iii) amending the general principle to make accessible documents re-usable; 
iv)  imposing  a  requirement  to  publish  data  in  machine-readable  formats;  v)  imposing  a 
requirement to appoint an independent regulator and to provide for an effective and efficient 
redress  mechanism;  vi)  reversing  the  burden  of  proof  of  compliance  with  charging 
requirements; vii) imposing a requirement to define the scope of ‘public task’ by legislative 
means only. 

Option 5: Packaged solution 

This  option  would  combine  substantive  changes  to  the  re-use  framework  (Option  4)  with 
additional  guidance  on  the  principles  to  be  applied  by  national  authorities  when  they 
implement it at national level (Option 3). 

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Result of the impact assessment 

In the impact assessment, the capacity of PSI-based products and services to bring economic 
and  social  benefits  to  all  consumers  was  weighed  against  the  economic  and  social  costs 
resulting from potential losses in revenue incurred by releasing public data for re-use at no or 
low cost. Particular attention was paid to the fact that any policy in this area must ensure that 
there is level playing field between hybrid public bodies engaging in commercial re-use of the 
data  they  produce  or  collect  with  public  funds  and  their  private  competitors  and  that  a 
disproportionate  burden  is  not  imposed  on  the  public  sector,  thereby  endangering  PSI 
production, investment and innovation. 

According  to  the  assessment,  no  changes  to  the  current  legal  framework  (option  1)  will 
increase  the  likelihood  of  divergent  approaches  at  national  level,  giving  rise  to  regulatory 
uncertainty and distorting competitive conditions in the internal market. 

Repealing the Directive (option 2) would remove the safety net provided at Union level by the 
minimum PSI re-use rules. Leaving Member States free to act in an area previously subject to 
harmonised  Union  rules  would  give  rise  to  increased  legal  uncertainty  and  divergence  of 
national approaches, to the detriment of competition and the internal market for the re-use of 
PSI. Repealing the Directive would also be totally inconsistent with related data accessibility 
and re-usability initiatives pursued at Union and national level. 

Adopting soft law measures only (option 3) will facilitate application of the rules of the PSI 
Directive on licensing and charging, but will nonetheless increase the likelihood of divergent 
approaches at national levels, giving rise to regulatory uncertainty and distorting competitive 
conditions in the internal market. 

Amending the current provisions of the Directive (option 4) will help establish a more re-use 
friendly regulatory framework: this will broaden the scope of application of the Directive by 
including cultural material, create an enforceable Union right to re-use PSI, bring down prices 
for the re-use of PSI, enhance the effectiveness of the redress mechanism for enforcement of 
the right to re-use, and bring about a more level playing field with public bodies competing 
with  private  re-users.  However,  this  option  carries  a  risk  of  divergences  —  and  legal 
uncertainty — in the application of individual provisions, in particular on cost calculation and 
licensing conditions. 

Combining legislative amendments with soft law measures (option 5) combines the benefits 
of  option  3  and  4.  This  will  hence  ensure  the  convergence  of  national  re-use  friendly 
regulatory  approaches  throughout  the  internal  market,  thereby  enhancing  legal  certainty, 
increasing  incentives  and  lowering  barriers  to  PSI  re-use.  The  analysis  undertaken  in  the 
impact assessment indicates that this option offers the best balance between promotion of the 
re-use of PSI, harmonisation and legal certainty in the light of national circumstances. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

3.1. 

Legal basis 

The  PSI  Directive  was  adopted  on  the  basis  of  Article  114  TFEU  (95  TEC),  as  its  subject 
matter  concerned  the  proper  functioning  of  the  internal  market  and  the  free  circulation  of 
services. Any amendments to the Directive must therefore have the same legal basis. 

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3.2. 

Subsidiarity and proportionality 

The PSI Directive was adopted on the basis of Article 114 TFEU (formerly Article 95 TEC). 
The overall aim of this revision is to eliminate persisting and emerging differences between 
Member States in the exploitation of public sector information, which hamper realisation of 
the  full  economic  potential  of  this  resource.  Specific  aims  are  to  facilitate  the  creation  of 
Union-wide  products  and  services  based  on  PSI,  to  ensure  the  effective  cross-border  use  of 
PSI  for  value-added  products  and  services,  to  limit  distortions  of  competition  on  the  Union 
market, and to prevent the deepening of disparities among Member States in dealing with re-
use of PSI. 

The content of the proposal corresponds to those aims. 

The  economic  importance  of  open  data,  in  particular  government  data,  as  a  basis  for  new 
information  services  and  products  is  now  more  widely  recognised  than  in  2002,  when  the 
Commission made its proposal for a Directive. While the basic framework rules for the re-use 
of public sector information have been harmonised at Union level, several issues remain and 
others have emerged. 

As  a  result,  the  existing  legal  framework  is  considered  by  stakeholders  to  be  no  longer 
sufficiently capable of ensuring conditions that can maximise the potential benefits of public 
data resources in Europe. With the development of PSI-based activities, some of the current 
substantive rules hamper the development of activities based on the re-use of PSI and lead to 
a fragmented internal market. 

The current charging regime, based on cost recovery as allowed by the rules of the Directive, 
is considered inadequate for incentivising activities based on the re-use of public data. Only 
harmonisation  at  Union  level  can  ensure  that  the  default  charging  rule  and  exceptions  are 
consistent across the Union in order to stimulate re-use activities. 

Moreover, in some Member States public bodies have discretion as to whether to permit re-
use17.  As  a  result,  ‘there  is  an  obvious  lack  of  harmonisation  amongst  the  Member  States 
regarding  re-use  of  public  data,  which  may  also  apply  to  (public)  traffic  data’18.  Action  at 
Union level is necessary to guarantee e.g. that re-use is allowed for valuable core public sector 
data  across  Member  States  and  that  individual  commercially  active  public  bodies  do  not 
hamper the development of innovative products and services. 

Also,  difficulties  in  obtaining  effective  redress  in  several  Member  States  when  PSI  re-use 
rules are infringed deter re-users from engaging in ambitious re-use projects across the Union. 

Further harmonisation of the basic principle, the charging regime, the scope and enforcement 
mechanisms in order to alleviate fragmentation of the internal market and to stimulate cross-
border PSI-based products and services cannot be achieved at Member State level alone. 

As regards scope, the object of the revision is not to regulate, directly or indirectly, the right 
of access to public documents, which remains the sole and exclusive competence of Member 

17 

18 

UK Re-use of Public Sector Information Regulations 2005, ‘A public sector body may permit re-use’ 
(regulation 7(1)). 
Study on guaranteed access to traffic and travel data and free provision of universal traffic information, 
Lyon, 11 October 2010. 

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States.  The  revised  provisions  would  apply  to  the  re-use  of  documents  where  these  are 
generally accessible, including under national access rules. 

Also,  the  object  of  the  revision  is  not  to  regulate  the  processing  of  personal  data  by  public 
sector bodies or the status of intellectual property rights, which are not affected beyond what 
is already the case under the existing rules of the Directive. 

Without targeted action at Union level, 
regulatory activities at national level, 
which have already been initiated in a 
number of Member States, might 
exacerbate the significant differences 
that already exist. Such existing national 
provisions will in the absence of further 
harmonisation disturb the functioning of 
the internal market. Conversely, Union 
action is restricted to the elimination or 
prevention of the identified 
obstacles.2011/0430 (COD) 

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Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

Amending Directive 2003/98/EC on re-use of public sector information  

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 114 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee19, 

Having regard to the opinion of the Committee of the Regions20,  

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

Directive 2003/98/EC of the European Parliament and of the Council of 17 November 
2003 on the  re-use of public sector information21 establishes a  minimum set of  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. 

Open data policies which encourage the wide availability and re-use of public sector 
information for private or commercial purposes, with minimal or no legal, technical or 
financial  constraints,  can  play  an  important  role  in  kick-starting  the  development  of 
new  services  based  on  novel  ways  to  combine  and  make  use  of  such  information. 
However, this requires a level playing field at Union level in terms of whether or not 
the re-use of documents is authorised, which cannot be achieved by leaving it up to the 
different rules and practices of the Member States or the public bodies concerned. 

(3) 

Allowing re-use of documents held by a public sector body adds value for the re-users, 
for the end users and for the society in general and in many cases for the public body 

19 
20 
21 

OJ C , , p. . 
OJ C , , p. . 
OJ L 345, 31.12.2003, p. 90. 

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(4) 

(5) 

(6) 

(7) 

itself, by providing feedback from re-users and end users which allows the holder to 
improve the quality of the information collected. 

Since the first set of rules on re-use of public sector information was adopted in 2003, 
the amount of data in the world, including public data, has exploded and new types of 
data  are  being  generated  and  collected.  In  parallel,  we  are  witnessing  continuous 
revolution in technologies for analysis, exploitation and processing of data. This rapid 
technological evolution makes it possible to create new services and new applications, 
which are built upon the use, aggregation or combination of data. The rules adopted in 
2003 no longer keep pace with these rapid changes and as a result the economic and 
social opportunities offered by re-use of public data risk to be missed.  

At  the  same  time,  Member  states  have  now  established  re-use  policies  under  the 
2003/98/EC  Directive  and  some  of  them  have  been  adopting  ambitious  open  data 
approaches to make re-use of accessible public data easier for citizens and businesses 
beyond  the  minimum  level  set  up  by  the  Directive.  To  prevent  different  rules  in 
different Member States acting as a barrier for the cross-border offer of products and 
services, and to enable comparable public data sets to be re-usable for pan-European 
applications  based  on  them,  a  minimum  harmonisation  is  also  required  as  to  what 
public data is available for re-use in the internal  information  market,  consistent  with 
the relevant access regime. 

Directive  2003/98/EC  does  not  contain  an  obligation  to  allow  re-use  of  documents. 
The decision whether or not to authorise re-use remains with the Member Sates or the 
public sector body concerned. At the same time, the Directive builds on national rules 
on access to documents. Some Member States have expressly linked the right of re-use 
to this right of access, so that all generally accessible documents are re-usable. In other 
Member States, the link between the two sets of rules is less clear and this is a source 
of legal uncertainty.  

Directive 2003/98/EC should therefore lay down a clear obligation for Member States 
to  make  all  generally  available  documents  re-usable.  As  it  constitutes  a  limitation  to 
the intellectual property rights hold by the authors of the documents, the scope of such 
a link between the right of access and the right of use should be narrowed to what is 
strictly  necessary  to  reach  the  objectives  pursued  by  its  introduction.  In  this  respect, 
taking into account the Union legislation and Member States' and Union's international 
obligations,  notably  under  the  Berne  Convention  for  the  Protection  of  Literary  and 
Artistic Works and the Agreement on Trade-Related Aspects of Intellectual Property 
Rights  (the  TRIPS  Agreement),  documents  on  which  third  parties  hold  intellectual 
property rights should be excluded from the scope of Directive 2003/98/EC. If a third 
party  was  the  initial  owner  of  a  document  held  by  libraries  (including  university 
libraries), museums and archives that is still protected by intellectual property rights, 
that document should, for the purpose of this Directive, be considered as a document 
for which third parties hold intellectual property rights.  

(8) 

The application of Directive 2003/98/EC should be without prejudice to the rights that 
employees of public sector bodies may enjoy under national rules.  

(9)  Moreover,  where  any  document  is  made  available  for  re-use,  the  public  sector  body 

concerned should retain the right to exploit the document. 

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(10)  The scope of application of the Directive is extended to libraries (including university 
libraries),  museums  and  archives.  The  Directive  does  not  apply  to  other  cultural 
institutions, such as operas, ballets or theatres, including the archives that are part of 
these institutions.  

(11)  To  facilitate  re-use,  public  sector  bodies  should  make  documents  available  through 
machine  readable  formats  and  together  with  their  metadata  where  possible  and 
appropriate, in a format that ensures interoperability , e.g. by processing them in a way 
consistent  with  the  principles  governing  the  compatibility  and  usability  requirements 
for spatial information under Directive 2007/2/EC of the European Parliament and of 
the Council of 14 March 2007 establishing an Infrastructure for Spatial Information in 
the European Community (INSPIRE)22 

(12)  Where  charges  are  made  for  the  re-use  of  documents,  they  should  in  principle  be 
limited to the marginal costs incurred for their reproduction and dissemination, unless 
exceptionally  justified  according  to  objective,  transparent  and  verifiable  criteria.  The 
necessity  of  not  hindering  the  normal  running  of  public  sector  bodies  covering  a 
substantial  part  of  the  operating  cost  relating  to  the  performance  of  their  public  task 
from the exploitation of their intellectual property rights should notably be taken into 
consideration. The burden of proving that charges are cost-oriented and comply with 
relevant  limits  should  lie  with  the  public  sector  body  charging  for  the  re-use  of 
documents. 

(13) 

In relation to any re-use that is made of the document, public sector bodies may, where 
practicable, impose conditions on the re-user, such as acknowledgment of source. Any 
licences  for  the  re-use  of  public  sector  information  should  in  any  case  place  as  few 
restrictions  on  re-use  as  possible.  Open  licences  available  online,  which  grant  wider 
re-use  rights  without  technological,  financial  or  geographical  limitations  and  relying 
on  open  data  formats,  may  also  play  an  important  role  in  this  respect.  Therefore, 
Member States should encourage the use of open government licences. 

(14)  Proper  implementation  of  some  of  the  features  of  this  Directive,  such  as  means  of 
redress,  compliance  with  charging  principles  and  reporting  obligations  require 
supervision  by  independent  authorities  competent  on  the  re-use  of  public  sector 
information.  To  ensure  consistency  between  approaches at  Union  level,  coordination 
between  the  independent  authorities  should  be  encouraged,  particularly  through 
exchange of information on best practices and data re-use policies. 

(15)  Since  the objective of this Directive,  namely  to  facilitate  the  creation  of  Union-wide 
information  products  and  services  based  on  public  sector  documents,  to  ensure  the 
effective cross-border use of public sector documents by private companies for added-
value information products and services, and to limit distortions of competition on the 
Union market, cannot be sufficiently achieved by Member States and can therefore, in 
view of the intrinsic pan-European scope of the proposed action, be better achieved at 
Union  level,  the  Union  may  adopt  measures  in  accordance  with  the  principle  of 
subsidiarity  as  set  out  in  Article  5  of  the  Treaty  on  the  Functioning  of  the  European 
Union. In accordance with the principles of proportionality, as set out in that Article, 

22 

OJ L 108, 25.4.2007, p. 1. 

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this  Directive  does  not  go  beyond  what  is  necessary  in  order  to  achieve  those 
objectives. 

(16)  This Directive respects the fundamental rights and observes the principles recognised 
in particular by the Charter of Fundamental Rights of the European Union, including 
the  right  to  property  (Article  17).  Nothing  in  this  Directive  should  be  interpreted  or 
implemented in a manner that is inconsistent with the European Convention on Human 
Rights. 

(17) 

It  is  necessary  to  ensure  that  the  Member  States  (see  recital  19)  report  to  the 
Commission  on  the  extent  of  the  re-use  of  public  sector  information,  the  conditions 
under which it is made available, and the work of the independent authority. To ensure 
consistency between approaches at Union level, coordination between the independent 
authorities  should  be  encouraged,  particularly  through  exchange  of  information  on 
best practices and data re-use policies. 

(18)  The Commission should assist the Member States in implementing the Directive in a 
consistent way by giving guidance, particularly on charging and calculation of costs, 
on  recommended  licensing  conditions  and  on  formats,  after  consulting  interested 
parties. 

(19) 

In  accordance  with  the  Joint  Political  Declaration  of  Member  States  and  the 
Commission on explanatory documents of [date], Member States have undertaken to 
accompany, in justified cases, the notification of their transposition measures with one 
or more documents explaining the relationship between the components of a directive 
and the corresponding parts of national transposition instruments. With regard to this 
Directive, the legislator considers the transmission of such documents to be justified. 

(20)  Directive 2003/98/EC should therefore be amended accordingly, 

HAVE ADOPTED THIS DIRECTIVE: 

Article 1 
Amendments to Directive 2003/98/EC 

Directive 2003/98/EC is amended as follows: 

1. 

Amendments to Article 1: (Subject matter and scope): 

(1) 

In paragraph 2, point (a) is replaced by the following: 

‘(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 in question;’ 

(2) 

In paragraph 2, point (e) is replaced by the following: 

‘(e)  documents  held  by  educational  and  research  establishments,  such  as 
research facilities, including, where relevant, organisations established for the 
transfer of research results, schools and universities (except university libraries 

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in respect of documents other than research documents protected by third party 
intellectual property rights) and ;’ 

(3) 

In paragraph 2, point (f) is replaced by the following: 

‘(f)  documents  held  by  cultural  establishments,  other  than  libraries,  museums 
and archives;’ 

(4) 

In paragraph 4, ‘Community’ is replaced by ‘Union’. 

(5)  At the end of paragraph 5, the following sentence is added: 

‘The  provisions  of  this  Directive  are  without  prejudice  to  the  economic  or 
moral rights that employees of public sector bodies may enjoy under national 
rules.’ 

2. 

In Article 2 (Definitions) the following paragraph is added: 

‘6. 'machine-readable' means that digital documents are sufficiently structured 
for software applications to identify reliably individual statements of fact and 
their internal structure.’ 

3. 

Article 3 is replaced by the following: 

‘Article 3 

General principle 

(1)  Subject to paragraph (2) Member States shall ensure that documents referred to 
in Article 1 shall be re-usable for commercial or non-commercial purposes in 
accordance with the conditions set out in Chapters III and IV. 

(2)  For  documents  for  which  libraries  (including  university  libraries),  museums 
and archives have intellectual property rights, Member States shall ensure that, 
where the re-use of documents 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. 

4. 

Amendments to Article 4 (Requirements applicable to the processing of requests for 
re-use): 

(1)  At the end of paragraph 3, the following sentence is added: 

‘However,  libraries  (including  university  libraries),  museums  and  archives 
shall not be required to include such a reference.’ 

(2)  At the end of paragraph 4, the following wording is added: 

‘The means of redress shall include the possibility of review by an independent 
authority that is vested with specific regulatory powers regarding the re-use of 
public  sector  information  and  whose  decisions  are  binding  upon  the  public 
sector body concerned.’ 

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5. 

Amendments to Article 5 (Available formats): 

(1) 

In  paragraph  1,  the  words  ‘through  electronic  means’  are  replaced  by  ‘in 
machine-readable format and together with their metadata.’. 

6. 

Amendments to Article 6 (Charges): 

(1)  The following paragraphs are inserted at the beginning of the Article:  

‘1.  Where  charges  are  made  for  the  re-use  of  documents,  the  total  amount 
charged by public sector bodies shall be limited to the marginal costs incurred 
for their reproduction and dissemination.’ 

‘2.  In  exceptional  cases,  in  particular  where  public  sector  bodies  generate  a 
substantial  part  of  their  operating  costs  relating  to  the  performance  of  their 
public  service  tasks  from  the  exploitation  of  their  intellectual  property  rights, 
public sector bodies may be allowed to charge for the re-use of documents over 
and above the marginal costs, according to objective, transparent and verifiable 
criteria, provided this is in the public interest and subject to the approval of the 
independent  authority  referred  to  in  Article  4(4),  and  without  prejudice  to 
paragraphs 3 and 4 of this Article.’ 

‘3.  Notwithstanding  paragraphs  1  and  2,  libraries  (including  university 
libraries),  museums  and  archives  may  charge  over  and  above  the  marginal 
costs for the re-use of documents they hold.’ 

(2)  The existing text of Article 6 becomes paragraph 4. 

(3)  A new paragraph 5 is added: 

‘The burden of proving that charges comply with this Article shall lie with the 
public sector body charging for re-use.’ 

In  Article  7  (Transparency),  the  words  ‘over  and  above  the  marginal  costs  or’  are 
inserted after ‘calculation of charges’. 

Amendments to Article 8: 

(1)  Paragraph 1 is replaced by the following: 

‘Public  sector  bodies  may  allow  re-use  without  conditions  or  may  impose 
conditions, such as indication of source, where appropriate through a licence. 
These  conditions  shall  not  unnecessarily  restrict  possibilities  for  re-use  and 
shall not be used to restrict competition.’ 

7. 

8. 

9. 

Article 9 is replaced by the following: 

‘Article 9 

Practical arrangements 

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Member  States  shall  ensure  that  practical  arrangements  facilitating  the  cross- 
lingual search for documents available for re-use are in place, such as asset lists 
of main documents with relevant metadata, accessible preferably online and in 
machine-readable format, and portal sites that are linked to decentralised asset 
lists.’ 

10. 

In  Article  11  (Prohibition  of  exclusive  arrangements),  the  following  sentence  is 
added at the end of paragraph 3: 

‘However, such arrangements involving cultural establishments and university 
libraries shall be terminated at the end of the contract or in any case not later 
than 31 December 20XX [6 years after entry into force of the Directive].’ 

11. 

Article 12 (Transposition) is replaced by the following: 

‘Article 12 

Member  States  shall  communicate  to  the  Commission  the  text  of  the  main 
provisions  of  national  law  which  they  adopt  in  the  field  covered  by  this 
Directive.’ 

12. 

In  Article  13  (Review)  the  date  of  1  July  2008  is  replaced  by  [3  years  after  the 
transposition date] and the following paragraph is added: 

‘Member States shall submit a yearly report to the Commission on the extent of 
the re-use of public sector information, the conditions under which it is made 
available and the work of the independent authority referred to in article 4(4).’ 

Article 2 

(1) 

(2) 

Member  States  shall  adopt  and  publish,  by  18  months  at  the  latest,  the  laws, 
regulations  and  administrative  provisions  necessary  to  comply  with  this  Directive. 
They  shall  forthwith  communicate  to  the  Commission  the  text  of  those  provisions 
and a correlation table between those provisions and this Directive. 

When  Member  States  adopt  those  provisions,  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. 

This Directive shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Article 3 

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Article 4 

This Directive is addressed to the Member States in accordance with the Treaties. 

Done at Brussels, 

For the European Parliament 

For the Council 

The President 

The President 

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