Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2018/0111 (COD)**

**PROPOSAL**

**Brussels, 2 May 2018**
**(OR. en)**

**8531/18**

**TELECOM 113**
**PI 48**
**RECH 156**
**MI 310**
**COMPET 266**
**DATAPROTECT 78**
**CYBER 80**
**IA 114**
**CODEC 674**

From: Secretary-General of the European Commission,
signed by Mr Jordi AYET PUIGARNAU, Director

date of receipt: 26 April 2018

To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council of
the European Union

No. Cion doc.: COM(2018) 234 final

Subject: Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF
THE COUNCIL on the re-use of public sector information (recast)

Delegations will find attached document COM(2018) 234 final.

Encl.: COM(2018) 234 final

8531/18 KM/ek

## DG E2B EN

EUROPEAN

COMMISSION

Brussels, 25.4.2018
COM(2018) 234 final

2018/0111 (COD)

Proposal for a

**DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**on the re-use of public sector information (recast)**

{SWD(2018) 127 final} - {SWD(2018) 128 final} - {SWD(2018) 129 final} 
{SWD(2018) 145 final}

# **EN EN**

**EXPLANATORY MEMORANDUM**

**1.** **CONTEXT** **OF** **THE** **PROPOSAL**

**•** **Reasons for and objectives of the proposal**

The public sector in EU Member States produces vast amounts of data, e.g. meteorological
data, digital maps, statistics and legal information. This information is a valuable resource for
the digital economy. It is not only used as valuable raw material for the production of databased services and applications, but also brings greater efficiency to the delivery of private
and public services and better informed decision-making. Therefore, the EU has been
promoting the re-use of public sector information (‘PSI’) for several years.

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 reuse and removing major barriers to re-use in the internal market. It introduced provisions on
non-discrimination, charging, exclusive arrangements, transparency, licensing and practical
tools to facilitate the discovery and re-use of public sector information.

In July 2013 Directive 2003/98/EC was amended by Directive 2013/37/EU, with the aim to
encourage Member States to make as much material held by public sector bodies available for
re-use as possible. The modifications introduced an obligation to allow the re-use of generally
accessible public data, expanded the scope of the Directive to include documents [1] from public
libraries, museums and archives, established a default charging rule limited to the marginal
cost for reproduction, provision and dissemination of the information, and obliged public
sector bodies to be more transparent about the charging rules and conditions they apply. The
amending Directive was implemented into national legislation by all 28 EU Member States.

Article 13 of the Directive calls on the European Commission to carry out a review of the
application of the Directive and to communicate the results, together with any proposal for
amendments, before 18 July 2018. The review was carried out by the Commission and
resulted in the publication of an evaluation report [2] . The report found that the Directive
continues to contribute to the achievement of its main policy objectives, but there are a
number of issues that need to be addressed in order to fully exploit the potential of public
sector information for the European economy and society. They include provision of real-time
access to dynamic data via adequate technical means, increasing the supply of high-value
public data for re-use, preventing the emergence of new forms of exclusive arrangements,
limiting the use of exceptions to the principle of charging the marginal cost and clarifying the
relationship between the PSI Directive and certain related legal instruments.

This proposal aims to address the above issues, adapting the Directive to the recent
developments in the field of data management and use. The overall objective is to contribute
to the strengthening of the EU’s data-economy by increasing the amount of public sector data
available for re-use, ensuring fair competition and easy access to markets based on public
sector information, and enhancing cross-border innovation based on data.

1 The terms "document", as defined in Article 2 of the Directive, should be understood broadly, and as
such it denotes also such concepts as data and content.
2 SWD(2018) 145.

# EN 1 EN

At the same time, the review of the PSI Directive is an important part of the initiative on
accessibility and re-use of public and publicly funded data announced by the Commission in
the Mid-Term Review of the Digital Single Market (DSM) Strategy [3] .

**•** **Consistency with existing policy provisions in the policy area**

The proposal pursues the objectives set out in the DSM Strategy and is consistent with
existing legal instruments.

It is coherent with the data protection legislation in force, namely the General Data Protection
Regulation (GDPR) [4] and the revised ePrivacy rules [5] . It is clear that the relationship between
data protection law and PSI re-use – in the sense that both the public sector body and the reuser must comply with data protection law in full – is an established part of Union law.

The proposal also seeks to clarify the relationship between the PSI Directive and the _sui_
_generis_ right provided for in Article 7 of the Database Directive [6] . The proposal does not alter
the protection given by Article 7 to public sector bodies that are makers of databases, nor does
it change the legal situation under the current Directive which prevented public sector bodies
from exercising the _sui generis_ protection right to prohibit or restrict the re-use of data
contained in databases.

Finally, the proposal builds on the proposal for a Regulation on the free flow of non-personal
data [7], which, once adopted, will ensure a more competitive and integrated internal market for
data storage and other processing services, complementing the provisions of the PSI
Directive.

**•** **Consistency with other Union policies**

By creating the right conditions for improved access to and re-use of public sector data across
the Union, this proposal complements other initiatives under the Digital Single Market
strategy.

It is consistent with the guidance that the Commission has published on data sharing between
businesses and between businesses and the public sector [8], which is a follow-up to the public
consultation launched with the Communication "Building a European Data Economy". [9] The
guidance concerns a range of issues around sharing the ever-increasing amount of data, often
created in an automated manner by machines or processes based on emerging technologies,
such as the Internet of Things (IoT).

Access to and re-use of public sector data is recognised as an important driver in the area of
big data analytics and Artificial Intelligence. In this context the proposal complements the

3 COM(2017) 228 final.
4 Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural
persons with regard to the processing of personal data and on the free movement of such data, and
repealing Directive 95/46/EC (General Data Protection Regulation).
5 Proposal for a Regulation of the European Parliament and of the Council concerning the respect for
private life and the protection of personal data in electronic communications and repealing Directive
2002/58/EC, COM(2017) 10 final.
6 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases.
7 COM(2017) 495 final.
8 SWD(2018) 125.
9 COM(2017) 9 final.

# EN 2 EN

initiative on next generation supercomputers, able to work ten times faster than the fastest
computer in existence today, which will be needed to re-combine, correlate and mash up the
ever growing amounts of data. The EU aims to take a lead in this domain with an investment
of 1 billion EUR of public funding for a Joint Undertaking aimed at setting up a HighPerformance-Computing network by 2023. [10]

The PSI Directive is a legal instrument allowing for the implementation of a horizontal policy
that aims to faciliate the re-use of public sector information. At the same time it remains
consistent with sectoral legislation laying down conditons for access to and reuse of data in
specific areas.

For example, access to and re-use of relevant data generated in the transport sector, is ensured
by legislation on the provision of EU-wide multimodal travel information services [11] . In the
energy sector, a recent proposal for a recast of the Electricity Directive [12] includes provisions
giving consumers the possibility to grant third parties access to their consumption data, while
in the water sector the Commission has proposed provisions on the sharing of water
parameters data in the context of the review of the Directive on the quality of water intended
for human consumption [13] . While these rules are driven by sector-specific concerns and focus
on selected datasets, the proposal lays down a horizontal framework providing minimum
harmonisation of re-use conditions across domains and sectors.

The proposal is also consistent with and builds on the INSPIRE Directive [14], which establishes
a legal and technical interoperability framework for the sharing of spatial data held by public
authorities for the purpose of environmental policies and policies and activities having an
impact on the environment. Consequently, spatial information is covered by both the PSI
Directive and the INSPIRE Directive. However, while the latter focuses technically on data
access services, interoperability models and mandatory data-sharing between administrations,
the former regulates the re-use of spatial datasets, including the conditions for re-use by third
parties. For increased legal certainty, the proposal contains a clarification of the relationship
between the two directives.

Finally, the proposal builds on the Commission's initiatives in the area of open access and
open science, such as the Recommendation on access to and preservation of scientific
information, which was revised [15] at the same time as the PSI Directive. It also complements
the actions supporting the development of tools and services underpinning Open Science and
promoting a pan-European access channel to the resources in the context of the European
Open Science Cloud.

10 COM(2018) 8 final.
11 Commission Delegated Regulation (EU) 2017/1926 of 31 May 2017 supplementing Directive
2010/40/EU of the European Parliament and of the Council with regard to the provision of EU-wide
multimodal travel information services.
12 Proposal for a Directive of the European Parliament and of the Council on common rules for the
internal market in electricity (recast), COM/2016/0864 final/2.
13 Proposal for a Directive of the European Parliament and of the Council on the quality of water intended
for human consumption (recast), COM/2017/0753 final.
14 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).
15 C(2018) 2375.

# EN 3 EN

**2.** **LEGAL** **BASIS,** **SUBSIDIARITY** **AND** **PROPORTIONALITY**

**•** **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.

**•** **Subsidiarity (for non-exclusive competence)**

The proposal complies with the principle of subsidiarity as set out in Article 5 of the Treaty
on European Union (TEU). This implies a positive assessment of two aspects: the necessity
test and the EU added value test.

The necessity test assesses if the objectives of the proposal can be sufficiently achieved by
Member States. The removal of the remaining obstacles to an open re-use of public sector
information and simultaneously aligning the legal framework to the evolving digital socioeconomic environment cannot be achieved by Member States alone. Diverging national legal
solutions would likely compromise the growing tendency towards cross-border re-use,
whereas the different levels of 'open data readiness' across EU Member States would persist
or deepen, having a negative effect on the homogeneity and competitiveness within the
Digital Single Market. The actions proposed are proportionate, since national intervention will
not be able to achieve the same results (increase in openly re-useable PSI), whilst at the same
time ensuring a competitive and non-discriminatory environment across the entire Single
Market. The proposed actions can be seen as the next step towards full availability of PSI for
re-use: a policy objective accepted by the Member States already in 2003 and confirmed in
2013. On the other hand, for scientific information, the proposal limits itself to ensuring legal
re-usability of research data and only such research data that has already been made openly
accessible as a result of obligations under national law or resulting from agreements with
research funding bodies. It does not extend one uniform set of rules on how to ensure access
to and re-use of all scientific information, but leaves this to Member States to define.

The proposal has also been positively assessed as regards EU added value. This was clearly
confirmed during the process of evaluation of the current version of the PSI Directive [16],
which revealed that it is seen as an important instrument that has played a role in encouraging
the national authorities to open up more public sector data across the EU and in the creation of
an EU-wide market for products and services based on PSI.

**•** **Proportionality**

The proposal complies with the principle of proportionality as set out in Article 5 TEU, as it
contains provisions that do not go beyond what is necessary to solve the identified problems
and achieve its objectives.

The proposal puts forward a balanced yet focused policy intervention. By targeting the new
requirements at areas where change is necessary, it reduces unnecessary compliance burden in
areas where change is not essential but difficult to enact. In addition, the intervention logic
tested in the previous revision of the Directive (ensuring a competitive market for PSI re-use
as a first step, before the application of an obligation to allow re-use) has proved to be an
efficient strategy, ensuring the attainment of objectives for all groups of bodies successively
brought within the scope of the Directive, while allowing for an ample adjustment period.

16 SWD(2018) 145.

# EN 4 EN

The accompanying impact assessment [17] provides more details on the proportionality and cost
effectiveness of the options in this legislative proposal.

**•** **Choice of the instrument**

This proposal substantially amends Directive 2003/98/EC and adds a number of new
provisions. In the interest of clarity, it is proposed to use the recasting method. Given that the
instrument being recast is a Directive, for reasons of consistency of legal drafting and to
facilitate Member States transposition of the act, this proposal is also for a Directive.

**3.** **RESULTS** **OF** **EX-POST** **EVALUATIONS,** **STAKEHOLDER**
**CONSULTATIONS** **AND** **IMPACT** **ASSESSMENTS**

**•** **Ex-post evaluations/fitness checks of existing legislation**

As part of the Regulatory Fitness and Performance Programme (REFIT), the existing PSI
Directive was subject to an evaluation. In line with the Better Regulation guidelines, the
evaluation assessed the evaluation criteria of effectiveness, efficiency, coherence, relevance
and EU added value of the intervention. It also assessed the economic, social and
environmental impacts the intervention. The evaluation aimed to identify opportunities to
reduce regulatory costs and to simplify the existing legislation without negatively affecting
the achievement of the underlying policy goals.

The evaluation report [18] has confirmed that overall the PSI Directive works well. It continues
to contribute to the achievement of its main policy objectives, which are to stimulate the
digital content market for PSI-based products and services, to stimulate cross-border
exploitation of PSI and to prevent distortions of competition on the EU market. At the same
time, it has had a favourable impact on transparency, citizen empowerment, and public sector
efficiency.

However, the report also indicates that there are a number of issues that would need to be
addressed in order to fully exploit the potential of public sector information for the European
economy and society: provision of real-time access to dynamic data via adequate technical
means, reducing the restrictions, including financial barriers, on the re-use of high-value
public data, acknowledging that relevant data are often generated in the context of the
provision of certain services of general economic interest by public undertakings and by
publicly funded research rather than by the public sector as such, the existence of new forms
of exclusive arrangements, the use of exceptions to the principle of charging the marginal cost
and the relationship between the PSI Directive and certain related legal instruments.

**•** **Stakeholder consultations**

The Commission consulted on the review of the PSI Directive between June 2017 and late
January 2018. The aim was to assess the functioning of the Directive, consider the scope of
the review and reflect on policy options. During the consultation process the opinions of both
PSI holders (public bodies) and re-users (public, private, commercial and non commercial
actors) were sought.

17 SWD(2018) 127.
18 SWD(2018) 145.

# EN 5 EN

An Inception Impact Assessment was published on the dedicated Better Regulation webpage
and it was available for feedback for 4 weeks (18 September 2017 - 16 October 2017). Seven
stakeholders sent replies.

A public online consultation was published on the dedicated Consultations webpage and it
was available for feedback for 12 weeks (19 September 2017 - 15 December 2017). All
interested parties, including governments, public sector content holders and users, commercial
and non-commercial re-users, experts and academics as well as citizens were invited to
contribute. The online questionnaire covered both the evaluation of the current Directive
implementation and the problems, objectives and possible options for the future. Respondents
also had the opportunity to upload a document, such as a position paper. With several targeted
actions, the Commission made stakeholders aware of the public online consultation and called
on them to participate. Feedback was received from 273 stakeholders. A total of 56 papers
received until the end of the consultation process, end of January 2018, were taken into

account.

As part of the evaluation and impact assessment process, a number of stakeholder events were
also organised to address particular issues and/or target specific stakeholders, including a
public hearing held on 19 January 2018, which was open to anyone wishing to contribute to
the debate on the future shape of the PSI Directive. Furthermore, several ad hoc meetings
have taken place with stakeholders' representatives.

The overall conclusion from the consultation was that although on the whole the PSI
Directive works well, there are areas which should be reviewed, such as the availability of
dynamic data, charging rules, and the wider availability of high-value PSI, including research
data and data generated in the context of the provision of a public task.

**•** **Collection and use of expertise**

The process of preparing the proposal was supported by a study on the functioning of the PSI
Directive (SMART 2017/0061) [19] . The aim of the study was to assist the Commission in
evaluating the existing legal and policy framework applicable to data access and re-use
(assessing the role which the PSI Directive has played in promoting PSI re-use across
Europe), and in checking whether it could be improved to address some of the weaknesses
identified and/or new issues which have emerged since the last revision of the Directive (in
particular by assessing the expected impacts of a number of policy options/combinations
thereof). The study relied on a combination of sources and methods, including strategic
interviews, desk research, interviews with stakeholders at the EU and national levels,
workshops with public sector practitioners and academics, as well as with PSI re-users and
data economy players, online surveys with public authorities, including public cultural
institutions, education and research bodies, as well as the re-user community, and analysis of
the public online consultation launched by the Commission.

As part of the preparatory work, the Commission has also analysed the latest Open Data
Maturity in Europe report [20], which measures Open Data maturity across Europe through a
series of indicators aligned with the provisions of the PSI Directive. This analysis was
complemented with information from the available Member States reports, received as part of
monitoring compliance with the PSI Directive pursuant to its Article 13(2). Additional input

19 The study was led by a consortium consisting of Deloitte, Open Evidence, Wik Consult, Time Lex,
Spark, and Lisbon Council.
20 [https://www.europeandataportal.eu/en/highlights/open-data-maturity-europe-2017](https://www.europeandataportal.eu/en/highlights/open-data-maturity-europe-2017)

# EN 6 EN

from Member States was received at a meeting of the Member State Expert Group on PSI on
15 November 2017 and at a meeting of the DSM Strategic Group on 22 February 2018.

**•** **Impact assessment**

The proposal is based on an impact assessment, which received a positive opinion with
reservations from the Commission’s Regulatory Scrutiny Board on 16 March 2018 [21] . The
issues raised by the Regulatory Scrutiny Board were addressed in the revised version of the
Impact Assessment Staff Working Document [22], in which a specific section details the changes
made following the Regulatory Scrutiny Board’s opinion.

The following options were considered in the impact assessment: a) a baseline scenario
(maintaining the current approach without changes); b) discontinuing existing EU action
(repeal of the PSI Directive); c) soft law measures only; and d) a packaged solution consisting
of both amendments of the PSI Directive and soft law.

While options b) and c) were discarded at an early stage, option a) was retained as the
baseline scenario, while option d) was presented as two possible packages, one with all
elements of lower legislative intensity, and the other one with all elements of higher
legislative intensity. The elements covered in each package were the use of APIs for dynamic
data, the review of charging rules, the availability of data resulting from public research
funding and data held by both public undertakings and private operators from the transport
and utilities sector, as well as the 'data lock-in' effect.

Both packages were subject to a thorough analysis against the baseline. Based on the evidence
presented in the impact assessment, a mixed package of lower intensity regulatory
intervention combined with an update of existing soft law was chosen as the preferred option,
based on the following elements:

_Dynamic data/APIs_ : a ‘soft’ obligation for Member States to make dynamic data available in
a timely manner and to introduce APIs. For a limited number of fundamental high-value
datasets (to be adopted through a Delegated Act) there will be a hard obligation to do so.

_Charging_ : tighten the rules for Member States for invoking the exceptions to the general rule
that public sector bodies cannot charge more than marginal costs for dissemination. Create a
list of fundamental high-value datasets that should be freely available in all Member States
(same datasets as above, to be adopted through a Delegated Act).

_Data in the transport and utilities sector_ : only public undertakings will be covered, not
private companies. A limited set of obligations will apply: public undertakings can charge
above marginal costs for dissemination and are under no obligation to release the data they do
not want to release.

_Research data_ : Member States will be obliged to develop policies for open access to research
data resulting from publicly funded research while keeping flexibility in implementation. The
PSI Directive will also cover research data that have already been made accessible as a result
of open access mandates, focusing on re-usability aspects.

_Non-exclusivity_ : transparency requirements for public-private agreements involving public
sector information (ex-ante check, possibly by national competition authorities, and openness
of the actual agreement).

21 SEC(2018) 206.
22 SWD(2018) 127.

# EN 7 EN

This is combined with an update of the Recommendation on the access to and preservation of
scientific information [23] and a clarification of the interaction between the PSI Directive and the

Database and INSPIRE Directives.

The chosen option allows for a targeted and proportional intervention, amounting to an
incremental strengthening of the Commission's open data policy. It is believed that it will lead
to a significant improvement over the baseline scenario. It is broadly acceptable to
stakeholders and can be realistically enacted within a reasonable timeframe due to lack of
notable Member State opposition. Although the benefits of the higher intensity regulatory
intervention scenario were considered to be substantial, that scenario was also generally
characterised by a lower feasibility, higher compliance costs, and higher risks for legal and
policy coherence.

**•** **Regulatory fitness and simplification**

The proposal constitutes an important contribution to the achievement of REFIT objectives. It
affects two large sets of stakeholders: re-users and bodies holding documents covered by the
Directive, but it only imposes obligations on the latter. When considering these obligations, it
should be borne in mind that several requirements of the Directive, notably those related to
the practical arrangements for making data available, are part of an overall effort towards
digitising the public administration [24] rather than specific PSI Directive-related costs.

Nevertheless, the proposal contains provisions which, in line with the Commission's REFIT
programme, aim at further reduction of administrative burden and increased cost savings
related to the implementation of the Directive, _inter alia_ through charging rules and clarifying
the interplay with other EU legal instruments, such as the Database and INSPIRE directives.
Additionally, enhanced use of APIs and proactive publishing of dynamic data online will
result in a decrease of administrative burden for public sector bodies due to a lower number of
re-use requests to process and a lower risk of complaints (including litigation), while
discontinued reporting obligation will reduce administrative burden and related costs of public
sector bodies on local, regional and national level.

For holders of documents to which the Directive extends as a result of this initiative, the
proposal aims at limiting the administrative burden. For documents held by certain public
undertakings that are providing a service of general economic interest the proposal limits the
impact in three ways. First, obligations under this Directive only apply insofar as the public
undertaking in question has taken the decision to make certain documents available for re-use.
Second, the procedural obligations to process a request for re-use in a certain manner and
within specific time-limits do not apply to this group of data holders. Finally, the obligations
to make available documents through certain technical means are subject to exceptions if they
are too burdensome on the undertakings. For research data, a specific category of documents
produced by scientific researchers, the proposal limits the impact by only applying to such
research data for which the researcher has already made all relevant efforts in order to make
the data publicly accessible and in particular through web-based repositories that are designed
to automate the dissemination process, making any intervention by the researcher in question
unnecessary. Such web-based repositories, typically funded by academic institutions, have,
however, dedicated helpdesks in order to assist re-users in terms of technical problems with
accessing documents they contain.

23 C(2018) 2375.
24 See: Policy action 4 of the Tallinn Declaration, https://ec.europa.eu/digital-singlemarket/en/news/ministerial-declaration-egovernment-tallinn-declaration.

# EN 8 EN

At the same time the proposal makes it considerably easier for commercial entities (mostly
SMEs) to benefit from the online availability of high quality data without cost. This will
eliminate the need to make individual requests, as well as any transactional costs, thus
contributing additionally to the REFIT objectives.

**•** **Fundamental rights**

The proposal does not pose any specific challenges in terms of compliance with fundamental
rights. The proposal is in line with the right to the protection of personal data (Article 8 of the
Charter of Fundamental Rights).

**4.** **BUDGETARY** **IMPLICATIONS**

The proposal has no impact on the European Union budget.

**5.** **OTHER** **ELEMENTS**

**•** **Implementation plans and monitoring, evaluation and reporting arrangements**

The Commission will monitor the impact of the Directive through a regular 'landscaping'
exercise performed by the European Data Portal, which feeds the annual Open Data Maturity
report.

The review clause has been modified so as to allow for the next evaluation of the impact of
the Directive to take place four years after the transposition date of the amending Directive.
The evaluation will examine whether the Directive has contributed to the achievement of its
overall aim, which is to contribute to the strengthening of the EU’s data-economy by
enhancing the positive effect of the re-use of public sector data on the economy and society. It
will be based on the five criteria of efficiency, effectiveness, relevance, coherence and EU
value added and will provide the basis for impact assessments of possible further measures.

As concerns research data, the national points of reference established by the
Recommendation on access to and preservation of scientific information of 17 July 2012 as
revised on 25 April 2018 [25] will report on the follow-up.

      - **Explanatory documents**

Considering the scope of the proposal and the fact that it is a recast of an existing directive,
which all Member States have transposed in full, it is neither justified nor proportionate to
require explanatory documents on the transposition.

**•** **Detailed explanation of the specific provisions of the proposal**

Chapter I defines the substantive scope of the Directive and the general principle.

With the recast the scope of application of the Directive shall be extended to documents held
by public undertakings active in the areas defined in the Directive 2014/25/EU on
procurement by entities operating in the water, energy, transport and postal services sectors
and by public undertakings acting as public service operators under Regulation (EC) No
1370/2007 insofar as they are were produced as part of the provision of services in the general
interest, as defined by law or other binding rules in the Member State.

25 C(2018) 2375.

# EN 9 EN

The scope shall also be extended to certain research data, a specific category of documents
produced as part of scientific research, namely results of the scientific fact-finding process
(experiments, surveys and similar) that are at the basis of the scientific process, while
publications in scientific journals continue to be excluded from the scope as they pose
additional challenges in terms of rights management. Consequently, the previous exemption
of documents held by educational and research establishments, including organisations
established for the transfer of research results, schools and universities, except university
libraries, will be limited.

The general principle that documents falling within the scope of the Directive are re-usable
for commercial and non-commercial purposes under the conditions set forth in this Directive
(Article 3) is unchanged for documents within the scope of the Directive before the recast. For
documents to which the scope of application is extended by the recast, the general principle
applies only insofar as the public undertakings in question have made the documents available
for re-use (identical to the provisions currently applying to documents in which libraries,
including university libraries, museums and archives hold intellectual property rights (Article
3(2) of Directive 2003/98/EC as amended by Directive 2013/13/EU)) or – in the case of
research data – where such research data have been made available by the researcher through
a web-based research data repository as a result of requirements imposed by research funders
on the researcher to allow access to and re-use of such data to a wider public ("Open Access
funder mandate").

Article 1(6) clarifies that the so-called _sui generis_ right protecting makers of databases
provided for in Article 7 of Directive 96/9/EC on the legal protection of databases cannot be
invoked by a public sector body which is the rightholder as a ground to prohibit re-use of the
content of the database.

Chapter II (Article 4) is amended so as to specify that the procedural requirements shall not
apply to public undertakings or with respect to research data in order to minimise the
administrative impact for the relevant bodies or organisations.

Chapter III includes a series of adaptations to the conditions and the way in which data are
made available for re-use. Article 5 takes account of the growing importance of dynamic
("real-time") data and includes the requirement on public sector bodies to make such data
available through an Application Programming Interface (API). Article 6 is amended to
specifiy that documents may also be provided free of charge . Free provision of documents
shall in particular apply to research data and to high-value datasets defined in accordance with
a delegated act under Article 13. The proposal acknowledges that the costs for anonymising
documents contaning personal data can be included in cost calculation . Article 10 specifies
that Member States shall support the availability of research data by adopting national policies
and relevant actions aiming at making all publicly funded research data openly available
('open access policies'). It also provides that data already available in "open access" research
data repositories shall be re-usable for commercial and non-commercial purposes according to
the provisions of the Directive.

Chapter IV (Article 12) is amended so as to specify that the prohibition of exclusive
arrangements shall also extend to such arrangements that do not expressly grant an exclusive
right in the re-use of documents, but may lead to a situation where access is limited to one or
very few re-users.

A new Chapter V has been added which defines a specific category of high-value datasets.
The category of high-value datasets is a subset of documents to which the Directive applies

# EN 10 EN

according to its Article 1 and the re-use of which is associated with important socio-economic
benefits. The list of such high-value datasets shall be determined in a delegated act pursuant
to Article 290 TFEU. This delegated act shall also specify the modalities of their publication
and re-use. In principle, the re-use of such high-value datasets should be free of charge and
for dynamic content Application Programming Interfaces (APIs) shall be used as a means of
dissemination.

# EN 11 EN

 2003/98/EC (adapted)
2018/0111 (COD)

Proposal for a

**DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**on the re-use of public sector information (recast)**

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty ~~establishing the European Community~~  on the Functioning of
the European Union , and in particular Article ~~95~~  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 Committee [26],

Having regard to the opinion of the Committee of the Regions [27]

Acting in accordance with the ordinary legislative procedure,

Whereas:

26 OJ C […], […], p. […].
27 OJ C […], […], p. […].

# EN 1 EN

 2003/98/EC recital 1

(5) 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.

 executive, legislative or judicial nature  constitute a vast, diverse and valuable
pool of resources that can benefit the knowledge economy.

 2013/37/EU recitals 2 and 5
(adapted)

(7) Directive 2003/98/EC of the European Parliament and of the Council of 17 November
2003 on the re-use of public sector information ~~establishes~~  established  a
minimum set of rules governing the re-use and the practical means of facilitating reuse of existing documents held by public sector bodies of the Member States ,
including executive, legislative and judicial bodies  . Since  the adoption of 
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 increased exponentially and
new types of data are being generated and collected. In parallel, we are witnessing a
continuous evolution 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  originally  adopted in 2003  and later amended in 2013  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 being missed.

# EN 2 EN

 2003/98/EC recital 2 (adapted)

(8) The evolution towards a ~~n~~ ~~information and knowledge~~  data-based  society
influences the life of every citizen in the Community,  among other things  ~~_inter_~~
~~_alia_~~ ~~,~~ by enabling them to gain new ways of accessing and acquiring knowledge.

 2003/98/EC recital 3 (adapted)

(9) 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  by innovative start-ups and SMEs  ~~in small emerging companies.~~

 2003/98/EC recital 4

 2003/98/EC recital 5 (adapted)

(10) One of the principal aims of the establishment of an internal market is the creation of
conditions conducive to the development of ~~Community-wide~~  Union-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 development of wireless content services. Broad cross-border geographical
coverage will also be essential in this context. Wide ~~r~~ 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.

 2013/37/EU recital 4

(11) Allowing re-use of documents held by a public sector body adds value for the re-users,
for the end users and for society in general and in many cases for the public body
itself, by promoting transparency and accountability and providing feedback from reusers and end users which allows the public sector body concerned to improve the
quality of the information collected.

 2003/98/EC recital 6 (adapted)

(12) There are considerable differences in the rules and practices in the Member States
relating to the exploitation of public sector information resources, which constitute
barriers to bringing out the full economic potential of this key document resource.
~~Traditional~~ ~~Ppr~~ actice in public sector bodies in exploiting public sector information
 continues to vary among Member States  ~~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 sector documents should therefore be undertaken, in
cases where the differences in national regulations and practices or the absence of
clarity hinder the smooth functioning of the internal market and the proper
development of the information society in the Community.

# EN 3 EN

 2013/37/EU recital 3 (adapted)

(13) 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, and which promote the circulation of information not only for
economic operators but also for the public, 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, stimulate economic growth and promote social engagement.
~~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 subject~~
~~to the different rules and practices of the Member States or the public sector bodies~~
~~concerned.~~

 2003/98/EC recital 7

(14) Moreover, without minimum harmonisation at Community level, legislative activities
at national level, which have already been initiated in a number of Member States in
order to respond to the technological challenges, might result in even more significant
differences. The impact of such legislative differences and uncertainties will become
more significant with the further development of the information society, which has
already greatly increased cross-border exploitation of information.

(15) ~~At the same time,~~ Member States have ~~now~~ established re-use policies under Directive
2003/98/EC and some of them have been adopting ambitious open data approaches to
make re-use of accessible public data easier for citizens and companies beyond the
minimum level set by that Directive. To prevent different rules in different Member
States acting as a barrier to 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 required to determine what public data
are available for re-use in the internal information market, consistent with the relevant

 2003/98/EC recital 8

(16) A general framework for the conditions governing re-use of public sector documents is
needed in order to ensure fair, proportionate and non-discriminatory conditions for the

# EN 4 EN

re-use of such information. Public sector bodies collect, produce, reproduce and
disseminate documents to fulfil their public tasks. Use of such documents for other
reasons constitutes a re-use. Member States' policies can go beyond the minimum
standards established in this Directive, thus allowing for more extensive re-use.

 2013/37/EU recital 10 (adapted)

(17)  This  Directive ~~2003/98/EC~~ should apply to documents the supply of which
forms part of the public tasks of the public sector bodies concerned, as defined by law
or by other binding rules in the Member States. In the absence of such rules the public
tasks should be defined in accordance with common administrative practice in the
Member States, provided that the scope of the public tasks is transparent and subject to
review. The public tasks could be defined generally or on a case-by-case basis for
individual public sector bodies.

accessible for re-use when public sector bodies license, sell, disseminate, exchange or
give out information. To avoid cross-subsidies, re-use should include further use of
documents within the organisation itself for activities falling outside the scope of its
public tasks. Activities falling outside the public task will typically include supply of
documents that are produced and charged for exclusively on a commercial basis and in
competition with others in the market. ~~The definition of ‘document’ is not intended to~~
~~cover computer programmes.~~

Directive builds on the existing access regimes in the Member States and does not
change the national rules for access to documents. It does not apply in cases in which
citizens or companies can, under the relevant access regime, only obtain a document if
they can prove a particular interest. At ~~Community~~  Union  level, Articles 41
(right to good administration) 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 encourage re-use of documents, including
official texts of a legislative and administrative nature in those cases where the public
sector body has the right to authorise their re-use.

# EN 5 EN

# EN 6 EN

 2003/98/EC recital 10 (adapted)

(25) The definitions of ‘public sector body’ and ‘body governed by public law’ are taken
from ~~the public procurement Directives~~ Directive 2014/24/EU of the European
Parliament and the Council [35] ~~(92/50/EEC~~ ~~[36]~~ ~~, 93/36/EEC~~ ~~[37]~~ ~~and 93/37/EEC~~ ~~[38]~~ ~~and~~
~~98/4/EC~~ ~~[39]~~ ~~).~~ ~~Public undertakings are not covered by these definitions.~~

 2003/98/EC recital 11 (adapted)

(26) 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.~~  The definition of ‘document’

34 C(2018)2375
35 Directive 2014/24/EU of the European Parliament and the Council of 26 February 2014 on public
procurement (OJ L 94, 28.3.2014, p. 65).
36 ~~OJ L 209, 24.7.1992, p. 1. Directive as last amended by Commission Directive 2001/78/EC (OJ L 285,~~
~~29.10.2001, p. 1).~~
37 ~~OJ L 199, 9.8.1993, p. 1. Directive as last amended by Commission Directive 2001/78/EC.~~
38 ~~OJ L 199, 9.8.1993, p. 54. Directive as last amended by Commission Directive 2001/78/EC.~~
39 ~~OJ L 101, 1.4.1998, p. 1.~~

# EN 7 EN

for replying to requests for re-use should be reasonable and in ~~line~~  accordance 
with the equivalent time for requests to access the document under the relevant access

creation of new aggregated information products and services at pan-European level.

 including  ~~e.g.~~ traffic data , satellite data, weather data  ), the economic
value of which depends on the immediate availability of the information and of regular

be a part of the terms of the licence.

(29) The possibilities for re-use can be improved by limiting the need to digitise paperbased documents or to process digital files to make them mutually compatible.
Therefore, public sector bodies should make documents available in any pre-existing
format or language, through electronic means where possible and appropriate. Public

# EN 8 EN

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 disproportionate 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 dependent on the use of specific software. Where possible and
appropriate, public sector bodies should take into account the possibilities for the reuse of documents by and for  persons  ~~people~~ with disabilities  by providing
the information in accessible formats  .

(30) To facilitate re-use, public sector bodies should, where possible and appropriate, make
documents , including those published on websites,  available through open and
machine-readable formats and together with their metadata, at the best level of
precision and granularity, 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 [40] ~~of 14 March 2007 establishing an Infrastructure for~~
~~Spatial Information in the European Community (INSPIRE).~~

the normal running of public sector bodies that are required to generate revenue to
cover a substantial part of their costs relating to the performance of their public tasks
~~or of the costs relating to the collection, production, reproduction and dissemination of~~

40 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) (OJ L 108, 25.4.2007,
p.1).

# EN 9 EN

should  therefore  be able to charge above marginal costs. Those charges should
be set according to objective, transparent and verifiable criteria and the total income
from supplying and allowing re-use of documents should not exceed the cost of
collection, production, reproduction and dissemination, together with a reasonable

administrative practices in Member States. Such a requirement should be regularly
reviewed by the Member States.

(33) Libraries, museums and archives should also be able to charge above marginal costs in
order not to hinder their normal running. In the case of such public sector bodies the
total income from supplying and allowing re-use of documents over the appropriate
accounting period should not exceed the cost of collection, production, reproduction,
dissemination, preservation and rights clearance, together with a reasonable return on

the purpose of libraries, museums and archives and bearing in mind their
particularities, the prices charged by the private sector for the re-use of identical or
similar documents could be considered when calculating a reasonable return on
investment.

 2013/37/EU recital 24

(34) The upper limits for charges set in this Directive are without prejudice to the right of
Member States to apply lower charges or no charges at all.

 2013/37/EU recital 25

(35) Member States should lay down the criteria for charging above marginal costs. In this
respect, Member States, for example, may lay down such criteria in national rules or
may designate the appropriate body or appropriate bodies, other than the public sector
body itself, competent to lay down such criteria. That body should be organised in
accordance with the constitutional and legal systems of the Member States. It could be
an existing body with budgetary executive powers and under political responsibility.

 2003/98/EC recital 14 (adapted)

~~Where charges are made, the total income should not exceed the total costs of collecting,~~
~~producing, reproducing and disseminating documents, together with a reasonable return on~~

# EN 10 EN

~~investment, having due regard to the self-financing requirements of the public sector body~~
~~concerned, where applicable. Production includes creation and collation, and dissemination~~
~~may also include user support. Recovery of costs, together with a reasonable 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.~~

(36) 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~~
 Union-wide  information market. Therefore all applicable conditions for the reuse of the documents should be made clear to the potential re-users. Member States
should encourage the creation of indices accessible on line, where appropriate, of
available documents so as to promote and facilitate requests for re-use. Applicants for

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.

 2013/37/EU recital 28

(37) The means of redress should include the possibility of review by an impartial review
body. That body could be an already existing national authority, such as the national
competition authority, the national access to documents authority or a national judicial
authority. That body should be organised in accordance with the constitutional and
legal systems of Member States and should not prejudge any means of redress
otherwise available to applicants for re-use. It should however be distinct from the
Member State mechanism laying down the criteria for charging above marginal costs.
The means of redress should include the possibility of review of negative decisions but
also of decisions which, although permitting re-use, could still affect applicants on
other grounds, notably by the charging rules applied. The review process should be
swift, in accordance with the needs of a rapidly changing market.

 2003/98/EC recital 16

(38) 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.

# EN 11 EN

 2003/98/EC recital 17

(39) 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 acknowledgement of source. If public sector
bodies 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.

 2003/98/EC recital 18

(40) If the competent authority decides to no longer make available certain documents for
re-use, or to cease updating these documents, it should make these decisions publicly
known, at the earliest opportunity, via electronic means whenever possible.

 2003/98/EC recital 19

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

 2013/37/EU recital 26

(42) In relation to any re-use that is made of the document, public sector bodies may
impose conditions, where appropriate through a licence, such as acknowledgment of
source and acknowledgment of whether the document has been modified by the reuser in any way. Any licences for the re-use of public sector information should in any
event place as few restrictions on re-use as possible, for example limiting them to an
indication of source. Open licences available online, which grant wider re-use rights
without technological, financial or geographical limitations and relying on open data
formats, should play an important role in this respect. Therefore, Member States
should encourage the use of open licences that should eventually become common
practice across the Union.

 2003/98/EC recital 20

(43) 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 exclusive right to re-use specific public sector documents may
sometimes be necessary. This may be the case if no commercial publisher would
publish the information without such an exclusive right.

# EN 12 EN

right relates to digitisation of cultural resources, a certain period of exclusivity might
be necessary in order to give the private partner the possibility to recoup its
investment. That period should, however, be limited in time and as short as possible,
in order to respect the principle that public domain material should stay in the public
domain once it is digitised. The period of an exclusive right to digitise cultural
resources should in general not exceed 10 years. Any period of exclusivity longer than
10 years should be subject to review, taking into account technological, financial and
administrative changes in the environment since the arrangement was entered into. In
addition, any public private partnership for the digitisation of cultural resources should
grant the partner cultural institution full rights with respect to the post-termination use
of digitised cultural resources.

(47) This Directive  is without prejudice and  should be implemented and applied in
full compliance with ~~the principles~~  Union law  relating to the protection of
personal data ~~in accordance with Directive 95/46/EC of the European Parliament and~~

# EN 13 EN

~~of the Council of 24 October 1995 on the protection of individuals with regard to the~~
~~processing of personal data and of the free movement of such data~~ ~~[41]~~  including
Regulation (EU) 2016/679 of the European Parliament and of the Council [42] and
Directive 2002/58/EC of the European Parliament and of the Council [43]  .

 2003/98/EC recital 22

(48) 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 the existence or ownership of
intellectual property rights of public sector bodies, nor does it limit the exercise of
these rights in any way beyond the boundaries set by this Directive. The obligations
imposed by this Directive should apply only insofar as they are compatible with the
provisions of international agreements on the protection of intellectual property rights,
in particular the Berne Convention for the Protection of Literary and Artistic Works
(the Berne Convention) and the Agreement on Trade-Related Aspects of Intellectual
Property Rights (the TRIPS Agreement). Public sector bodies should, however,
exercise their copyright in a way that facilitates re-use.

 2013/37/EU recital 9 (adapted)

(49) Taking into account Union law and the international obligations of Member States and
of the Union, particularly under the Berne Convention ~~for the Protection of Literary~~
~~and Artistic Works~~ and the  TRIPS  Agreement ~~on Trade-Related Aspects of~~
~~Intellectual Property Rights,~~ documents for which third parties hold intellectual
property rights should be excluded from the scope of  this  Directive
~~2003/98/EC.~~ If a third party was the initial owner of the intellectual property rights for
a document held by libraries, including university libraries, museums and archives and
the term of protection of those rights has not expired, that document should, for the
purpose of this Directive, be considered as a document for which third parties hold
intellectual property rights.

41 ~~OJ L 281, 23.11.1995, p. 31.~~
42 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC (General Data Protection Regulation) […].
43 Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the
processing of personal data and the protection of privacy in the electronic communications sector
(Directive on privacy and electronic communications) (OJ L 201, 31/07/2002 p. 37).

# EN 14 EN

 2013/37/EU recital 12 (adapted)

(50)  This  Directive ~~2003/98/EC~~ should be without prejudice to the rights, including
economic and moral rights that employees of public sector bodies may enjoy under
national rules.

 2013/37/EU recital 13

(51) Moreover, where any document is made available for re-use, the public sector body
concerned should retain the right to exploit the document.

 2003/98/EC recital 23

(52) 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 reused 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.

(53) 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~~ [44] and Directive 96/9/EC of
the European Parliament and of the Council ~~of 11 March 1996 on the legal protection~~
~~of databases~~ [45] . It spells out the conditions within which public sector bodies can
exercise their intellectual property rights in the internal information market when

 2013/37/EU recital 27 (adapted)

(54) The Commission has supported the development of an online  Open Data Maturity
Report  ~~Public Sector Information scoreboard~~ with relevant performance indicators
for the re-use of public sector information in all the Member States. A regular update
of this  report  ~~scoreboard~~ will contribute to the exchange of information
between the Member States and the availability of information on policies and
practices across the Union.

44 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 (OJ L 167,
22.6.2001, p. 10).
45 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases (OJ L 77, 27.3.1996, p. 20).

# EN 15 EN

(55) It is necessary to ensure that the Member States  monitor  ~~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 redress practices.

(56) The Commission  may  ~~should~~ assist the Member States in implementing this
Directive in a consistent way by issuing  and updating existing  guidelines,
particularly on recommended standard licences, datasets and charging for the re-use of
documents, after consulting interested parties.

(57) One of the principal aims of the establishment of the internal market is the creation of
conditions conducive to the development of Union-wide services. Libraries, museums
and archives hold a significant amount of valuable public sector information resources,
in particular since digitisation projects have multiplied the amount of digital public
domain material. These cultural heritage collections and related metadata are a
potential base for digital content products and services and have a huge potential for

# EN 16 EN

 2003/98/EC recital 25 (adapted)

~~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~~
~~information products and services and to limit distortions of competition on the Community~~
~~market, cannot be sufficiently achieved by the Member States and can therefore, in view of~~
~~the intrinsic Community scope and impact of 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~~
~~proportionality, as set out in that Article, this Directive does not go beyond what is necessary~~
~~in order to achieve those objectives. This Directive should achieve minimum harmonisation,~~
~~thereby avoiding further disparities between the Member States in dealing with the re-use of~~
~~public sector documents.~~

 2013/37/EU recital 33 (adapted)

(61) Since the objectives 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 on the one hand by private
companies, particularly by small and medium-sized enterprises, for added-value
information products and services, and on the other hand by citizens to facilitate the
free circulation of information and communication, cannot be sufficiently achieved by
 the  Member States ~~and~~  but  can  rather  ~~therefore~~, by reasons of
the 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 European Union. In accordance with the principle ~~s~~ of
proportionality ~~,~~ as set out in that Article, this Directive does not go beyond what is
necessary in order to achieve those objectives.

(62) This Directive respects the fundamental rights and observes the principles recognised
in particular by the Charter of Fundamental Rights of the European Union, including

# EN 17 EN

(Article 26)  . Nothing in this Directive should be interpreted or implemented in a
manner that is inconsistent with the European Convention for the Protection of Human
Rights and Fundamental Freedoms.

 2003/98/EC

HAVE ADOPTED THIS DIRECTIVE:

### **CHAPTER I** **GENERAL PROVISIONS**

_Article 1_

**Subject matter and scope**

1. This Directive establishes a minimum set of rules governing the re-use and the
practical means of facilitating re-use of:

(a) existing documents held by public sector bodies of the Member States ~~;.~~

(b) existing documents held by public undertakings active in the areas defined in Directive
2014/25/EU of the European Parliament and of the Council [47] and by public undertakings
acting as public service operators pursuant to Article 2 of Regulation (EC) No 1370/2007 of
the European Parliament and of the Council [48], public undertakings acting as air carriers

# EN 18 EN

(c) research data, pursuant to conditions set out in Article 10(1) and (2).

 2003/98/EC

2. This Directive shall not apply to:

 2013/37/EU Art. 1(1)(a)(i)

(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, provided that the scope of
the public tasks is transparent and subject to review;

 2003/98/EC

(c ~~b)~~ documents for which third parties hold intellectual property rights;

 2013/37/EU Art. 1(1)(a)(ii)
(adapted)

(d ~~c)~~ documents which are excluded from access by virtue of the access regimes in
the Member States, including on the grounds of:

– the protection of national security ( ~~i.e.~~  that is to say,  State security),
defence, or public security,

–
statistical confidentiality,

– commercial confidentiality ( ~~e.g.~~  including  business, professional or
company secrets);

# EN 19 EN

 2013/37/EU Art. 1(1)(a)(iii)

(e ~~ca)~~ documents access to which is restricted by virtue of the access regimes in the
Member States, including cases whereby citizens or companies have to prove a
particular interest to obtain access to documents;

( ~~fcb)~~ parts of documents containing only logos, crests and insignia;

(g ~~cc)~~ documents access to which is excluded or restricted by virtue of the access
regimes on the grounds of protection of personal data, and parts of documents
accessible by virtue of those regimes which contain personal data the re-use of which
has been defined by law as being incompatible with the law concerning the
protection of individuals with regard to the processing of personal data;

 2003/98/EC

(h ~~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;

(i ~~f)~~ documents held by cultural establishments other than libraries,  university
libraries,  museums and archives;

 2013/37/EU Art. 1(1)(b)

3. This Directive builds on and is without prejudice to access regimes in the Member
States.

# EN 20 EN

 2003/98/EC
 1 2013/37/EU Art. 1(1)(c)

4 ~~5~~ . The obligations imposed by this Directive shall 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 and the TRIPS Agreement.

 2003/98/EC

_Article 2_

**Definitions**

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

1. ‘public sector body’ means the State, regional or local authorities, 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 commercial 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;

# EN 21 EN

 2013/37/EU Art. 1(2)

4 ~~9~~ . ‘university’ means any public sector body that provides post-secondary-school
higher education leading to academic degrees; ~~.~~

 2003/98/EC

5 ~~3~~ . ‘document’ means:

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

(b) any part of such content;

 2003/98/EC (adapted)

9 ~~4~~ . ‘re-use’ means the use by persons or legal entities of documents held by public
sector bodies, for commercial or non-commercial purposes other than the initial
purpose within the public task for which the documents were produced, ~~.~~
 except  e ~~Ex~~ change 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 Directive 95/46/EC.~~

 2013/37/EU Art. 1(2)

10 ~~6.~~ ‘machine-readable format’ means a file format structured so that software
applications can easily identify, recognize and extract specific data, including
individual statements of fact, and their internal structure;

# EN 22 EN

11 ~~7.~~ ‘open format’ means a file format that is platform-independent and made
available to the public without any restriction that impedes the re-use of documents;

12 ~~8.~~ ‘formal open standard’ means a standard which has been laid down in written
form, detailing specifications for the requirements on how to ensure software
interoperability;

_Article 3_

**General principle**

1. Subject to paragraph 2 Member States shall ensure that documents to which this
Directive applies in accordance with Article 1 shall be re-usable for commercial or noncommercial purposes in accordance with the conditions set out in Chapters III and IV.

2. For documents in which libraries, including university libraries, museums and
archives hold intellectual property rights  and for documents held by public
undertakings , Member States shall ensure that, where the re-use of such 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.

 2003/98/EC

### **CHAPTER II** **REQUESTS FOR RE-USE**

_Article 4_

**Requirements applicable to the processing of requests for re-use**

1. Public sector bodies shall, through electronic means where possible and appropriate,
process requests for re-use and shall make the document available for re-use to the applicant
or, if a licence is needed, finalise the licence offer to the applicant within a reasonable time
that is consistent with the 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

# EN 23 EN

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.

 2013/37/EU Art. 1(4)

3. In the event of a negative decision, the public sector bodies shall communicate the
grounds for refusal to the applicant 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 points (a) to (g ~~cc)~~ of Article 1(2 ~~2)~~ or Article 3. Where a negative decision is
based on point (c) of Article 1( ~~22)(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. Libraries, including
university libraries, museums and archives shall not be required to include such a reference.

4. Any decision on re-use shall contain a reference to the means of redress in case the
applicant wishes to appeal the decision. The means of redress shall include the possibility of
review by an impartial review body with the appropriate expertise, such as the national
competition authority, the national access to documents authority or a national judicial
authority, whose decisions are binding upon the public sector body concerned.

5.  The following entities shall not be required to comply with the requirements of
this Article: 

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

(a) public undertakings;

 2003/98/EC

### **CHAPTER III** **CONDITIONS FOR RE-USE**

_Article 5_

**Available formats**

# EN 24 EN

1.  Without prejudice to Chapter V,  ~~pPu~~ blic sector bodies  and public
undertakings  shall make their documents available in any pre-existing format or language,
and, where possible and appropriate, in open and machine-readable format together with their
metadata. Both the format and the metadata  shall  ~~should,~~ ~~in so far as~~  where 
possible, comply with formal open standards.

2. Paragraph 1 shall not imply an obligation for public sector bodies  or public
undertakings  to create or adapt documents or provide extracts in order to comply with that
paragraph where this would involve disproportionate effort, going beyond a simple operation.

3. On the basis of this Directive, public sector bodies  and public undertakings 
cannot be required to continue the production and storage 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**

2.  By way of exception,  p ~~Pa~~ ragraph 1 shall not apply to the following:

(a) public sector bodies that are required to generate revenue to cover a substantial
part of their costs relating to the performance of their public tasks;

(b ~~c)~~ libraries, including university libraries, museums and archives; ~~.~~

(c) public undertakings.

# EN 25 EN

3. In the cases referred to in points (a) and ~~(b)~~  (c)  of paragraph 2, ~~the public sector~~
~~bodies concerned shall calculate~~ the total charges  shall be calculated  according to
objective, transparent and verifiable criteria to be laid down by the Member States. The total
income ~~of those bodies~~ from supplying and allowing re-use of documents over the appropriate
accounting period shall not exceed the cost of collection, production, reproduction and

on investment. Charges shall be calculated in line with the  applicable  accounting
principles ~~applicable to the public sector bodies involved.~~

4. Where charges are made by the public sector bodies referred to in point (b ~~c)~~ of
paragraph 2, the total income from supplying and allowing re-use of documents over the
appropriate accounting period shall not exceed the cost of collection, production,

in line with the accounting principles applicable to the public sector bodies involved.

 2013/37/EU Art. 1(7) (adapted)

_Article 7_

**Transparency**

1. In the case of standard charges for the re-use of documents ~~held by public sector~~
~~bodies~~, any applicable conditions and the actual amount of those charges, including the
calculation basis for such charges, shall be pre-established and published, through electronic
means where possible and appropriate.

2. In the case of charges for the re-use other than those referred to in paragraph 1, the
~~public sector body in question shall indicate at the outset which~~ factors  that  are taken
into account in the calculation of those charges  shall be indicated at the outset  . Upon
request, the ~~public sector body~~  holder of documents  in question shall also indicate the
way in which such charges have been calculated in relation to the specific re-use request.

# EN 26 EN

 2013/37/EU Art. 1(7)

4. 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.

 2003/98/EC

_Article 8_

**Licences**

 2013/37/EU Art. 1(8) (adapted)

1. ~~Public sector bodies may allow~~ ~~Rr~~ e-use  of documents may be allowed  without
~~conditions~~ or ~~may impose~~  with  conditions, where appropriate through a licence. ~~These~~
 Those  conditions shall not unnecessarily restrict possibilities for re-use and shall not
be used to restrict competition.

 2003/98/EC (adapted)

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

 2013/37/EU Art. 1(9)

_Article 9_

**Practical arrangements**

Member States shall make practical arrangements facilitating the search for documents
available for re-use, such as asset lists of main documents with relevant metadata, accessible
where possible and appropriate online and in machine-readable format, and portal sites that
are linked to the asset lists. Where possible Member States shall facilitate the cross-linguistic
search for documents.

_Article 10_

**Availability and re-use of research data**

# EN 27 EN

### **CHAPTER IV**

### **NON-DISCRIMINATION AND FAIR TRADING**

_Article 11_ ~~_10_~~

**Non-discrimination**

1. Any applicable conditions for the re-use of documents shall be non-discriminatory for
comparable categories of re-use , including for cross-border re-use  .

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

_Article 12_ ~~_11_~~

**Prohibition of exclusive arrangements**

1. The re-use of documents shall be open to all potential actors in the market, even if one
or more market ~~players~~  actors  already exploit added-value products based on these
documents. Contracts or other arrangements between the public sector bodies  or public
undertakings  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

 2013/37/EU Art. 1(10)(a)

This paragraph shall not apply to digitisation of cultural resources.

 2013/37/EU Art. 1(10)(b)

3 ~~2a.~~ Notwithstanding paragraph 1, where an exclusive right relates to digitisation of
cultural resources, the period of exclusivity shall in general not exceed 10 years. In case
where that period exceeds 10 years, its duration shall be subject to review during the 11th
year and, if applicable, every seven years thereafter.

The arrangements granting exclusive rights referred to in the first subparagraph shall be
transparent and made public.

# EN 28 EN

In the case of an exclusive right referred to in the first subparagraph, the public sector body
concerned shall be provided free of charge with a copy of the digitised cultural resources as
part of those arrangements. That copy shall be available for re-use at the end of the period of
exclusivity.

 2013/37/EU Art. 1(10)(c)
(adapted)

~~3.~~ ~~Exclusive arrangements existing on 1 July 2005 that do not qualify for the exceptions~~
~~under paragraph 2 shall be terminated at the end of the contract or in any event not later than~~
~~31 December 2008.~~

 2013/37/EU Art. 1(10)(d)
(adapted)

5 ~~4~~ . ~~Without prejudice to paragraph 3,~~ ~~Ee~~ xclusive arrangements existing on 17 July 2013
that do not qualify for the exceptions under paragraphs 2 and 3 ~~2a~~ shall be terminated at the
end of the contract or in any event not later than 18 July 2043.

### **CHAPTER V**

### **HIGH VALUE DATASETS**

_Article 13_

**List of high value datasets**

3. By way of exception, the free availability referred to in paragraph 2 shall not apply to highvalue datasets of public undertakings if the impact assessment referred to in Article 13(7)

# EN 29 EN

a. any conditions for re-use;

 2003/98/EC

### **CHAPTER VI V**

### **FINAL PROVISIONS**

_Article 14_

**Exercise of the delegation**

# EN 30 EN

 2003/98/EC (adapted)

_Article 15_ ~~_12_~~

~~**Implementation**~~  **Transposition** 

1. Member States shall bring into force the laws, regulations and administrative provisions
necessary to comply with ~~this Directive~~  Articles […]  by ~~1 July 2005~~  […]  .
They shall forthwith inform  immediately communicate the text of those measures to 
the Commission ~~thereof~~ .

When Member States adopt those measures, they shall contain a reference to this Directive or
 shall  be accompanied by such a reference on the occasion of their official publication.
 They shall also include a statement that references in existing laws, regulations and
administrative provisions to the Directives repealed by this Directive shall be construed as
references to this Directive.  Member States shall determine how such reference is to be

made  and how that statement is to be formulated  .

 2. 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. 

_Article 16_ ~~_13_~~

~~**Review**~~  **Evaluation** 

1.  No sooner than four years after the date of transposition of this Directive,  t ~~Th~~ e
Commission shall carry out  an evaluation  ~~a review of the application~~ of this Directive
~~before 18 July 2018~~ and ~~shall communicate the results of that review, together with any~~
~~proposals for amendments to this Directive,~~  present a Report on the main findings  to

# EN 31 EN

2 ~~3~~ . The evaluation ~~referred to in paragraph 1~~ shall in particular address the scope and
impact of this Directive, including the extent of the increase in re-use of public sector
documents  to which this Directive applies , the effects of the principles applied to
charging and the re-use of official texts of a legislative and administrative nature,  the reuse of documents held by other entities than public sector bodies,  the interaction between
data protection rules and re-use possibilities, as well as further possibilities of improving the
proper functioning of the internal market and the development of the European ~~content~~



Article 17

**Repeal**

Directive 2003/98/EC, as amended by the Directive listed in Annex I, Part A, is repealed with
effect from [day after the date in the first subparagraph of Article 15(1)], without prejudice to
the obligations of the Member States relating to the time-limits for the transposition into
national law and the date of application of the Directives set out in Annex I, Part B.

References to the repealed Directive shall be construed as references to this Directive and
shall be read in accordance with the correlation table in Annex II.

 2003/98/EC (adapted)

_Article 18_ ~~_14_~~

**Entry into force**

This Directive shall enter into force on the  twentieth  day  following that  of its
publication in the _Official Journal of the European Union_ .

_Article 19_ ~~_15_~~

**Addressees**

This Directive is addressed to the Member States.

52 SWD (2017)350

# EN 32 EN

Done at Brussels,

_For the European Parliament_ _For the Council_
_The President_ _The President_

# EN 33 EN