Public Undertakings Thematic Seminar 3 PSI and Competition Law Julián Valero Torrijos

1. Public Undertakings Thematic Seminar 3 PSI and Competition Law Julián Valero Torrijos Universidad de Murcia (ITM) Institute for Information, Telecommunication und Media Law Münster, 27.01.2011

2. Agenda • Scope of Directive 2003/98/CE from a subjective point of view • Some doubts and questions • Some consequences • Why not an objective perspective as well? Public Undertakings. Thematic Seminar 3 (PSI and Competition)

3. Article 1 Directive 2003/98 Subject matter and scope 1. This Directive establishes a minimum set of rules governing the re-use and the practical means of facilitating reuse of existing documents held by public sector bodiesof the Member States Public Undertakings. Thematic Seminar 3 (PSI and Competition)

4. Article 1 Directive 2003/98 2. This Directive shall not apply to: (a) documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies concernedas 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 Public Undertakings. Thematic Seminar 3 (PSI and Competition)

5. Public undertakings Whereas (…) 10) The definitions of ‘public sector body’ and ‘body governed by public law’ are taken from the public procurement Directives (92/50/EEC, 93/36/EEC and 93/37/EEC (3) and 98/4/EC (4)). Public undertakings are not covered by these definitions. Public Undertakings. Thematic Seminar 3 (PSI and Competition)

6. 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; Public Undertakings. Thematic Seminar 3 (PSI and Competition)

7. Definitions 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; Public Undertakings. Thematic Seminar 3 (PSI and Competition)

8. Article 1 Directive 2003/98 2. This Directive shall not apply to: (a) documents the supply of which is an activity falling outside the scope of the public task of the public sector bodies concernedas 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 Public Undertakings. Thematic Seminar 3 (PSI and Competition)

9. Some other general principles Article 1 3. This Directive builds on and is without prejudice to the existing access regimes in the Member States. Whereas 9 This Directive does not contain an obligation to allow re-use of documents. The decision whether or not to authorise re-use will remain with the Member States or the public sector body concerned […] The Directive builds on the existing access regimes in the Member States and does not change the national rules for access to ocuments. Public Undertakings. Thematic Seminar 3 (PSI and Competition)

10. Shall we play a game? Public Undertakings. Thematic Seminar 3 (PSI and Competition)

11. Are they included? • Public-owned (controlled) companies • they are not public bodies • but they may have some public advantages • and relevant information • A public body disappears/turns into • a public-owned company • a private company • criteria: when was the information generated Public Undertakings. Thematic Seminar 3 (PSI and Competition)

12. Are they included? • Some “atypical” public bodies • public universities • professional associations (bar, medical…) • and relevant information • Foundations controlled by public bodies • Contractors recruited by public bodies • who owns the information? • inclusion clauses compulsory • And citizens/companies who obtained public subsidies for their activities and generated valuable information???? Public Undertakings. Thematic Seminar 3 (PSI and Competition)

13. Notion of State • Not only Public Administrations • Principle of “separation of power” • executive power (Government) • what is happening at the national level? • Who is included? • judiciary power as the main example • legislative power as well • constitutional courts • ombudsmen Public Undertakings. Thematic Seminar 3 (PSI and Competition)

14. Some consequences  Legal guarantees on access to public information may not be applied • Italian regulation as an example • Legal framework on e-Government • if there is an obligation to use electronic means for the activity/contact • access to information through electronic means is not stipulated • the use of open standards is not compulsory Public Undertakings. Thematic Seminar 3 (PSI and Competition)

15. In conclusion Legal barriers to re-use of PSI are not always based on “economic” reason but on cultural (transparency) and technological (e -Government) ones Public Undertakings. Thematic Seminar 3 (PSI and Competition)