European Commission commissioned Exclusive arrangement studies

The European Commissioned has in the absence of the majority of European Union Member States taking action commissioned studies to assess the position with respect to the existence of exclusive arrangements within Member States

The Directive 2003/98/EC

The framework laid down by the European Union (EU) Directive 2003/98/EC on the re-use of public sector information places obligations on EU Member States with respect to exclusive arrangements. The Directive states:

“Article 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 already exploit added-value products based on these documents. Contracts or other arrangements between the public sector bodies holding the documents and third parties shall not grant exclusive rights.

2. However, where an exclusive right is necessary for the provision of a service in the public interest, the validity of the reason for granting such an exclusive right shall be subject to regular review, and shall, in any event, be reviewed every three years. The exclusive arrangements established after the entry into force of this Directive shall be transparent and made public.

3. Existing exclusive arrangements that do not qualify for the exception under paragraph 2 shall be terminated at the end of the contract or in any case not later than 31 December 2008.”

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Preamble

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

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European Commission Communication on the review of Directive 2003/98/EC – 7^th May 2009

The Communication states on page 8:

“2) Terminating exclusive arrangements

All existing exclusive arrangements had to be terminated by 31.12.2008, unless it can be demonstrated that, by way of exception, they are necessary for the provision of a service in the public interest.16 There is however evidence of exclusive arrangements still in force in the MS. The Commission will closely scrutinise observance of this obligation. It will launch an exercise investigating the extent of such arrangements in summer 2009.”

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The Communication states on page 10 under Conclusions:

“MS need to focus their efforts now on full and correct implementation and application of the Directive, terminating exclusive arrangements, applying licensing and charging models that facilitate the availability and re-use of PSI, ensuring equal conditions for public bodies reusing their own documents and other re-users, and promoting quick and inexpensive conflict resolution mechanisms.”

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European Commission actions – 10^th December 2009

The European Commission on the 10^th December 2009 announced that a number of exclusive arrangements studies had been commissioned to assess the position with respect to exclusive arrangements in the following Member States.

• Austria
• Belgium
• Czech Republic
• Denmark
• France
• Germany
• Italy
• Poland
• Spain

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Page last updated: 20^th May 2010