COMMISSION STAFF WORKING PAPER EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT
Date: 2011-12-12
Institutions: European Commission
Subjects: access to information, data collection, dissemination of information, domestic market, public sector

EUROPEAN COMMISSION 

Brussels, 12.12.2011 
SEC(2011) 1551 final 

COMMISSION STAFF WORKING PAPER 

EXECUTIVE SUMMARY OF THE IMPACT ASSESSMENT 

Accompanying the document 

Proposal for a 

DIRECTIVE OF THE EUROPEAN PARLIAMENT AND THE COUNCIL_amending 
European Parliament and Council Directive 2003/98/EC on the re-use of public sector 
information 

{COM(2011) 877 final} 
{SEC(2011) 1552 final} 

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1. 

SCOPE AND CONTEXT 

1.1. 

Scope 

This impact assessment focuses on whether there is a need, in the light of developments in the 
market  for  the  re-use  of  public  sector  information  (PSI),  to  amend  the  provisions  of  the 
Directive 2003/98/EC on the re-use of public sector information (PSI Directive), which sets 
out basic conditions for the re-use of PSI throughout the EU. The Commission has taken into 
account changes on the re-use markets, including changes brought about by the Directive, and 
has assessed whether there are any barriers remaining and, if so, what these are and how best 
to tackle them.  

1.2. 

Context 

The PSI Directive was adopted on 17 November 2003. The purpose of the legal framework 
established by the Directive is to unlock the economic potential of government-owned data by 
making  the  data  available  for  commercial  or  non-commercial  re-use  in  order  to  stimulate 
innovation.  

The PSI Directive is a building block of the Digital Agenda for Europe and the Europe 2020 
strategy  for  smart,  sustainable  and  inclusive  growth1.  The  review  of  the  Directive  is  a  key 
action  under  the  Digital  Agenda  (1c).  The  economic  importance  of  open  data  resources, 
including government data, is now widely recognised. For example, according to a report in 
The  Economist  in  2010,  data  have  become  ‘an  economic  raw  input  almost  on  a  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.  However,  in  addition  to  fuelling  the 
innovation  and  creativity  that  stimulate  economic  growth,  open  public  data  also  make 
governments transparent, accountable and more efficient. 

 28 billion 
A recent study estimates the total market for public sector information in 2008 at €
across  the  EU4  but  that  the  overall  economic  gains  from  further  opening  up  public  sector 
information  by  allowing  easy  access  amount  to  €
 40  billion  a  year  for  the  EU27.  The  total 
direct and indirect economic gains from PSI use across the whole EU27 economy would be in 
 140  billion  annually5,  showing  clearly  that  there  are  considerable  economic 
the  order  of  €
benefits  from  greater  re-use  of  PSI.  The  challenge  is  to  provide  the  market  with  an  optimal 
legal framework to facilitate and stimulate actual commercial and non-commercial re-use of 
public data.  

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 was published in Communication 
COM(2009)  2126.  It  found  that,  despite  the  progress  made,  a  number  of  barriers  still 
remained, namely attempts by public sector bodies to maximise cost recovery as opposed to 

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5 

6 

http://ec.europa.eu/information_society/digital-agenda/index_en.htm. 
http://www.economist.com/node/15557443. 
http://webarchive.nationalarchives.gov.uk/+/interactive.bis.gov.uk/digitalbritain/report/. 
Review of recent studies on PSI re-use and related market developments, G. Vickery, August 2011. 
Review  of  recent  studies  on  PSI  re-use  and  related  market  developments,  G.  Vickery  July  2011, 
publication forthcoming. 
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0212:FIN:EN:PDF. 

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benefits  for  the  wider  economy,  unfair  competition  practices  between  the  public  and  the 
private sector or 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 of the impact, effects and application of the Directive would be available. 

A  wide-ranging  public  consultation  on  the  review  of  the  Directive  was  conducted  from  9 
September 2010 until 30 November 2010 and yielded 598 replies from all interested parties, 
including governments, public sector content holders (also from currently excluded sectors), 
commercial and non-commercial re-users, experts, academics and citizens. 

Responses to the consultation demonstrate that, although compared with the previous review, 
the culture of re-use has made headway in many Member States, much remains to be done to 
maximise  the  potential  of  PSI  re-use.  In  particular,  public  sector  bodies  and  re-users  alike 
called for clarification of and guidance on the charging and licensing principles and on data 
formats.  Also,  more  re-users  than  PSI  holders  were  in  favour  of  amending  the  Directive  to 
make all accessible information re-usable, adopt additional measures to open up public data 
resources,  and  introduce  practical  measures  facilitating  re-use  (including  asset  lists  of 
available documents, simplified or no licensing conditions and marginal cost charging). 

2. 

PROBLEM DEFINITION 

The following problems have been identified for a company seeking to develop a commercial 
online product that draws on public data across all the EU Member States.  

2.1. 

Insufficient clarity and transparency 

• 

• 

• 

Re-use is still hindered by the lack of information on what data are actually available, 
and  by  restrictive  or  unclear  conditions  of  re-use,  including  on  pricing  of 
information. 

There is not enough certainty that a set of data falls within the scope of re-use, with 
some  public  sector  bodies  relying  excessively  on  the  concept  of  ‘public  task’  to 
restrict re-use. 

SMEs  are  likely  to  find  the  process  for  obtaining  permission  to  re-use  PSI  too 
complex and shelve their product for lack of resources to follow the process through 
to its ultimate conclusion. 

2.2. 

Locked resources 

• 

The  scope of the Directive  currently  excludes data collected  or produced by public 
broadcasters, educational and research establishments and cultural institutions. Data 
from some of them, in particular cultural public domain material, is subject to re-use, 
albeit  under  unregulated  conditions  so  the  rationale  for  the  exemptions  has  to  be 
subjected to a new cost/benefit analysis. 

2.3. 

Excessive charging and lack of a level playing field 

• 

Re-users  complain  about  charges  being  set  at  a  level  which  effectively  acts  as  a 
barrier to re-use, in particular for SMEs. 

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• 

• 

Public  sector  bodies  often  misallocate  costs  between  their  unrefined  and  refined 
information  operations  and  cannot  ensure  that  the  prices  charged  to  businesses 
producing refined information products for their unrefined information are consistent 
with those they charge internally. 

Some  public  sector  bodies  combine  the  exercise  of  their  public  tasks  with 
commercial  revenue-raising  activities,  which  is  not  in  itself  prohibited  by  the  PSI 
Directive. When competing against the private sector on the markets for products and 
services  based  on  the  PSI  that  they  produce  and/or  collect,  some  of  these  public 
sector bodies tend to impose anti-competitive pricing and licensing conditions. 

2.4. 

Inconsistent approach across the Member States 

• 

• 

Implementation and application of the Directive and progress in PSI re-use across the 
EU has been uneven. 

The  varying  speed  with  which  individual  Member  States  implement  a  PSI  re-use 
policy  creates  the  risk  of  further  fragmentation  of  the  internal  market,  to  the 
detriment of businesses, consumers and citizens. 

2.5. 

Insufficient enforcement of re-use provisions 

• 

• 

Although the Member States have general redress systems that work, only some have 
made  provision  for  specific  authorities  to  hear  complaints  against  public  bodies 
infringing the rules on the re-use of PSI. 

Re-users in most Member States face cumbersome and lengthy proceedings that are 
ill-suited to deal with their complaints. The lack of an effective redress mechanism in 
some  Member  States  (time  to  decision,  effective  competences  of  bodies)  leads  to 
inefficiencies  on  some  markets  with  the  resulting  negative  impacts  on  competition 
and innovation and, ultimately, on consumer welfare. 

3. 

RATIONALE FOR EU ACTION, EU ADDED VALUE AND SUBSIDIARITY 

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

The  economic  importance  of  open  data,  in  particular  government  data,  as  a  basis  for  new 
information services and products is now more widely recognised. While the basic framework 
for the re-use of PSI has been harmonised at EU level, some issues remain. 

First, the purpose of the Directive is to alleviate the fragmentation of the internal market and 
to stimulate cross-border PSI-based products and services, since discrepancies in national PSI 
regulations can prevent the smooth functioning of the internal market for PSI re-use. 

For example, action is needed at EU level, in the form of an amendment to the scope of the 
Directive, in order to guarantee that public domain material held by cultural establishments is 
made available for re-use in a consistent manner across the EU and not within the individual 
Member States alone. 

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Secondly, the aim of the legal framework established by the Directive is to ensure conditions 
that  will  maximise  the  potential  benefits  of  re-use  of  public  data  resources  in  Europe. 
However, with the development of PSI-based activities, some of the current substantive rules 
do  not  reflect  this  objective.  For  example,  the  current  charging  regime  is  considered 
inadequate as an incentive for activities based on the re-use of public data. In addition, several 
Member States have individually moved to a marginal cost charging regime, whereas others 
have  maintained  a  cost  recovery  regime.  Only  action  at  EU  level  in  the  form  of  binding 
harmonisation can ensure that the default charging rule and exceptions are consistent across 
the EU in order to stimulate re-use activities. 

4. 

POLICY OBJECTIVES 

PSI  is  an  important  primary  material  for  digital  content  products  and  services  with  a  large, 
hitherto  unexploited  potential.  The  general  objective  of  this  EU  action  is  to  contribute  to 
economic growth and job creation by improving the conditions for the exploitation of PSI and 
facilitating the further development of the internal PSI re-use market. Moreover, opening up 
of PSI for re-use will have a positive effect on the transparency, efficiency and accountability 
of governments and contribute to citizen empowerment. The general objective is fully in line 
with the horizontal EU-level 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’. 

This general objective is broken down into specific objectives, which are to: 

(1) 

(2) 

(3) 

Prevent  distortions  of  competition  on  the  EU  market:  a  level  playing  field  re-
users and incumbent ‘hybrid’ public sector bodies engaging in commercial activities.  

Stimulate  the  digital  content  market  for  PSI-based  products  and  services: 
several  conditions  regarding  data  re-use  along  the  PSI  exploitation  chain,  both 
commercial and non-commercial, must be fulfilled to stimulate economic growth and 
job creation through PSI re-use.  

Stimulate cross-border exploitation of PSI: A true, thriving internal market for PSI 
re-use will not emerge unless the regulatory and practical barriers to re-use across the 
EU are removed. 

5. 

POLICY OPTIONS 

The following options are examined in the impact assessment report (Chapters 4 and 5): (i) no 
change  to  the  Directive  (baseline),  (ii)  repeal  of  the  Directive,  (iii)  soft  law  measures,  (iv) 
legislative  amendments,  and  (v)  a  package  solution  combining  soft  law  measures  and 
legislative amendments. 

No policy change: no change to the Directive (baseline) 

In 2009, after the first review of the Directive, the Commission concluded that the progress 
and  implementation  of  the  Directive  was  uneven,  and  identified  a  number  of  remaining 
barriers.  Due  to  insufficient  evidence  on  the  impact  and  application  of  the  Directive,  the 
Commission  decided  to  conduct  a  further  review  by  2012  in  order  to  consider  whether 
legislative  amendments  were  necessary,  taking  into  consideration  the  progress  made  by  the 

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Member  States  in  the  meantime.  For  the  re-use  of  PSI,  this  option  of  ‘no  policy  change’ 
would  mean  that  the  current  provisions  of  the  Directive  and  the  national  transposing 
instruments remain applicable. 

Discontinuing existing EU action: repeal of the PSI Directive 

The PSI Directive has established basic conditions for PSI re-use throughout the EU and has 
brought  about  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 
on  PSI  re-use.  This  particular  option  would  effectively  result  in  the  removal  of  all  the 
regulatory obligations currently contained in the Directive and in the transposing instruments. 

Soft law measures 

These  instruments,  e.g.  Commission  guidelines  or  recommendations,  provide  additional 
information and/or interpretation on some of the provisions of the PSI Directive. 

During the consultation, respondents in all categories suggested adoption of soft law measures 
for  licensing  models,  technical  formats  and  price  calculations  (including  for  calculating 
marginal  costs).  Respondents  also  generally  called  for  more  awareness  raising  actions, 
(exchange of best practices, expertise and experience). 

Legislative amendments 

This option consists of amending the substance of the Directive, i.e. the rights and obligations 
established  by  its  provisions.  Such  legislative  options  include:  i)  extending  the  scope  of  the 
Directive  to  the  currently  excluded  sectors;  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) making it obligatory to publish data in machine-readable 
formats; v) making it obligatory to appoint an independent regulator; vi) reversing the burden 
of proof of compliance with charging requirements; vii) requiring the scope of ‘public task’ to 
be defined by legislative means only. 

Package solution 

This  option  would  combine  substantive  changes  to  the  re-use  framework  (legislative 
amendments  option)  with  additional  guidance  on  the  principles  to  be  applied  by  national 
authorities when they implement it at national level (soft law measures option). 

6. 

COMPARISON OF POLICY OPTIONS AND IMPACTS 

Option 1 (status quo) would increase the likelihood of differing approaches at national levels, 
giving  rise  to  regulatory  uncertainty  and  distorting  conditions  of  competition  in  the  internal 
market. 

Option 2 (repeal of the Directive) would remove the safety net provided at EU level by the 
minimum  PSI  re-use  rules  leading  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  is  also  entirely  inconsistent  with  related  initiatives  on  data 
accessibility and re-usability pursued at EU and national level. 

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Option  3  (soft  law  measures),  alone  it  would  facilitate  application  of  the  rules  of  the  PSI 
Directive  on  licensing  and  charging,  but  would  nonetheless  increase  the  likelihood  of 
divergent  approaches  at  national  level,  creating  regulatory  uncertainty  and  distorting 
competitive conditions in the internal market. 

Option 4 (legislative amendments) would establish a regulatory framework conducive to re-
use:  it  would  broaden  the  scope  of  the  Directive  by  bringing  in  cultural  material,  create  an 
enforceable  EU  right  to  re-use  public  data,  bring  down  prices  for  the  re-use  of  PSI,  and 
enhance the effectiveness of the redress mechanism for enforcement of the right to re-use.  

Option  5 (package of soft law measures and legislative amendments) shares the benefits of 
Option  4,  but  it  would  in  addition  make  it  easier  to  apply  the  rules  of  the  PSI  Directive  on 
licensing  and  charging.  As  a  result,  it  would  ensure  the  convergence  of  national  regulatory 
approaches  to  re-use  throughout  the  internal  market,  thereby  enhancing  legal  certainty, 
increasing incentives and lowering barriers to PSI re-use. 

A comparison of  these  different policy options suggests that Option 5  (package of soft law 
measures and legislative amendments) offers the best balance between promotion of PSI re-
use,  harmonisation  and  legal  certainty  in  the  light  of  national  circumstances  and 
implementation costs. 

7. 

MONITORING AND EVALUATION 

The  core  indicator  of  progress  towards  meeting  the  identified  objectives  is  the  correct 
transposition and application of the PSI Directive.  

Progress  in  the  re-use  of  PSI  and  related  policies  across  the  EU  will  also  be  measured  in 
accordance with indicators, which may be refined in collaboration with the Member States (as 
envisaged by the eGovernment Action Plan 2011-2015). 

The  Commission  will  gather  data  through  a  reporting  obligation  for  Member  States,  input 
from stakeholders as part of a regular dialogue, and independent studies. 

The Commission will review the application of the Directive and will communicate the results 
to the European Parliament and to the Council three years after the transposition date 

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