Select Committee on European Union Forty-Ninth Report


PUBLIC SECTOR DOCUMENTS 11093/02

Letter from the Chairman to Stephen Timms MP, Minister of State for eCommerce and Competitiveness, Department of Trade and Industry and Douglas Alexander MP, Minister of State, Cabinet Office

  Thank you for your combined Explanatory Memorandum dated 4 September 2002 which Sub-Committee B considered at its meeting on 14 October 2002.

  In principle, we welcome the draft Directive in that it seeks to promote the re-use of public sector information as set out in the eEurope 2002 Action Plan. We note that this draft Directive is not about access to information, but about setting a minimal level of harmonisation and transparency in the re-use and commercial exploitation of public sector documents. These issues are set out in your EM with great lucidity.

  We note, however, that the Presidency hopes to reach a Common Position on the Directive in December this year. We are concerned that the specific national interests set out in your EM be adequately protected during the process of negotiation. We therefore maintain the Scrutiny Reserve on this document, and would be grateful for a regular report on the progress of negotiation.

21 October 2002

Letter from Douglas Alexander MP, Minister of State to the Chairman

  Thank you for your letter dated 21 October 2002 which set out your Committee's view on the proposed Directive on the re-use and commercial exploitation of public sector documents. Your Committee expressed concern that the specific national interests set out in the Explanatory memorandum submitted on 4 September 2002 should be adequately protected during the process of negotiation. Finally, your Committee maintained its Scrutiny reserve on the document and asked for a regular report on the progress of negotiation.

  Two key points for the UK during negotiations were how the proposal fitted with access regimes, and how the charging mechanisms for public sector documents would be applied. Discussions within the Working Group of the Telecommunications Council have resulted in a working text that reflects many of the UK's core concerns.

Access

  Following negotiations a new Article 1.2a is proposed which reads:

    "This Directive builds on the existing access regimes in the Member states and does not change the rules for access to documents held by public sector bodies. This Directive does not apply in cases in which citizens or companies have to prove a particular interest under the access regime to get access to the documents."

  This is reinforced by an additional exclusion in the same Article, which reads:

    "(ca) 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 (ie state security), defence, or pubic security

      —  Statistical or commercial confidentiality".

  The government now considers that its concerns over the possibility of inadvertent encroachment on access regimes in Member States have been fully addressed by these changes.

Charging

  The part of the proposed Directive dealing with charging principles (Article 6) has also evolved during negotiations. In particular, a sentence has been added which confirms that:

    "Charges should be cost-oriented over the normal accounting period."

  This answers a major concern of the UK government that this requirement should not be interpreted as applying to every individual transaction, but take into account normal trading conditions and practices. In earlier drafts the burden of proof was on the public sector bodies to demonstrate that charges were cost-oriented. However, in the current draft this obligation has been removed. This reflects the view of the Working Group that this was a matter for the Member States working within the content of their individual legal frameworks.

  The definition of cost-oriented in Article 6 and Recital 12 has been expanded to include:

    "Where charges are made, the total income from supply and allowing re-use of these documents shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment."

  Recital 12 goes on to specify that production includes creation and collation.

  The proposed Directive ensures that the private and public sector operate on a level playing field when value-added products are based on public sector documents. As recently amended it states:

    "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."

  The equality of treatment, favouring neither public nor private sector body and allowing both to compete on even terms, is an important provision of the Directive, and the government considers that it strikes the right balance. The source data for value-added material produced by the public sector is within the scope of the Directive, and available on the basis set out, ie the same conditions would apply for the private sector user as for the public sector bodies which produced the material.

  The inclusion of the possibility for public sector bodies to include a reasonable return on investment in the charges for re-use of documents is an important one for the UK, and particularly for organisations such as Ordnance Survey and the Met Office. A Presidency proposal, which has received wide support, is for specific recognition in a Recital that some public sector bodies depend on income from sales of their documents to finance their activities, The precise definition and level of "reasonable return on investment" has been deliberately left in general terms by the Commission, and for the discretion of Member States to interpret. This will vary according to the circumstances. However, the availability of the source material on the same terms and conditions will encourage competition, ensuring that the level does not become excessive. If concerns remain complainants will have the usual recourse to the law, and the public sector bodies concerned may be challenged in Court to prove that they are abiding by the rules set down by the Directive.

Conclusion

  The negotiations within the Telecommunications Working Group have addressed the access issue, whilst the key point on charging is to ensure a level playing field in the market. It is essential that the same conditions and costs are applicable for both the private sector and public sector when adding value to public sector information. The possibility of public sector bodies obtaining a reasonable return on investment is important, and the market, and the possibility of legal challenge, will ensure that this is not excessive.

  We will ensure that your Committee is kept closely informed of developments as negotiations continue. On that basis it would be greatly appreciated if your Committee could agree to lift your scrutiny reserve in time for the meeting of the Telecommunications Council, which will be looking to agree a common orientation on this proposal, on 5 December 2002.

21 November 2002

Letter from Stephen Timms MP, Minister for e-Commerce and Competitiveness to the Chairman

  Thank you for your letter dated 21 October 2002 which set out your Committee's view on the proposed Directive on the re-use and commercial exploitation of public sector documents. Your Committee expressed concern that the specific national interests set out in the Explanatory Memorandum submitted on 4 September 2002 should be adequately protected during the process of negotiation. Finally, your Committee maintained its Scrutiny reserve on the document and asked for a regular report on the progress of negotiation.

  Two key points for the UK during negotiations were how the proposal fitted with access regimes, and how the charging mechanisms for public sector documents would be applied. Discussions within the Working Group of the Telecommunications Council have resulted in a working text that reflects many of the UK's core concerns.

Access

  Following negotiations a new Article 1.2a is proposed which reads:

    "This Directive builds on the existing access regimes in the Member States and does not change the rules for access to documents held by public sector bodies. This Directive does not apply in cases in which citizens or companies have to prove a particular interest under the access regime to get access to the documents."

  This is reinforced by an additional exclusion in the same Article, which reads:

    "(ca) 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 (ie state security), defence, or pubic security

      —  statistical or commercial confidentiality".

  The government now considers that is concerns over the possibility of inadvertent encroachment on access regimes in Member States have been fully addressed by these changes.

Charging

  The part of the proposed Directive dealing with charging principles (Article 6) has also evolved during negotiations. In particular, a sentence has been added which confirms that:

    "Charges should be cost-oriented over the normal accounting period."

  This answers a major concern of the UK government that this requirement should not be interpreted as applying to every individual transaction, but take into account normal trading conditions and practices. In earlier drafts the burden of proof was on the public sector bodies to demonstrate that charges were cost-oriented. However, in the current draft this obligation has been removed. This reflects the view of the Working Group that this was a matter for the Member States working within the content of their individual legal frameworks.

  The definition of cost-oriented in Article 6 and Recital 12 has been expanded to include:

    "Where charges are made, the total income from supply and allowing re-use of these documents shall not exceed the cost of collection, production, reproduction and dissemination, together with a reasonable return on investment."

  Recital 12 goes on to specify that the production includes creation and collation.

  The proposed Directive ensures that the private and public sector operate on a level playing field when value-added products are based on public sector documents. As recently amended it states:

    "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."

  The equality of treatment, favouring neither public nor private sector body and allowing both to compete on even terms, is an important provision of the Directive, and the government considers that it strikes the right balance. The source data for value-added material produced by the public sector is within the scope of the Directive, and available on the basis set out, ie the same conditions would apply for the private sector user as for the public sector bodies which produced the material.

  The inclusion of the possibility for public sector bodies to include a reasonable return on investment in the charges for re-use of documents is an important one for the UK, and particularly for organisations such as Ordnance Survey and the Met Office. A Presidency proposal, which has received wide support, is for specific recognition in a Recital that some public sector bodies depend on income from sales of their documents to finance their activities. The precise definition and level of "reasonable return on investment" has been deliberately left in general terms by the Commission, and for the discretion of Member States to interpret. This will vary according to the circumstances. However, the availability of the source material on the same terms and conditions will encourage competition, ensuring that the level does not become excessive. If concerns remain complaints will have the usual recourse to the law, and the public sector bodies concerned may be challenged in Court to prove that they are abiding by the rules set down by the Directive.

Conclusion

  The negotiations within the Telecommunications Working Group have addressed the access issue, whilst the key point on charging is to ensure a level playing field in the market. It is essential that the same conditions and costs are applicable for both the private sector and public sector when adding value to public sector information. The possibility of public sector bodies obtaining a reasonable return on investment is important, and the market, and the possibility of legal challenge, will ensure that this is not excessive.

  We will ensure that your Committee is kept closely informed of developments as negotiations continue. On that basis it would be greatly appreciated if your Committee could agree to lift your scrutiny reserve in time for the meeting of the Telecommunications Council, which will be looking to agree a common orientation on this proposal, on 5 December 2002.

20 November 2002

Letter from the Chairman to Stephen Timms MP, Minister of State for eCommerce and Competitiveness, Department of Trade and Industry and Douglas Alexander MP, Minister of State, Cabinet Office

  Thank you for your letter dated 20 November which Sub-Committee B considered at its meeting on 2 December.

  The UK appears to have achieved its objectives in negotiation over the key matters of access and charging mechanisms for public sector documents. This being the case, we are content to lift the Scrutiny reserve on these documents.

  However, we should be grateful if you would report to us the outcome of the Telecommunications Council on 5 December 2002.

4 December 2002

Letter from the Chairman to Stephen Timms MP, Minister of State for eCommerce and Competitiveness, Department of Trade and Industry and Douglas Alexander MP, Minister of State, Cabinet Office

  Thank you for your letter dated 20 November which Sub-Committee B considered at its meeting on 2 December.

  The UK appears to have achieved its objectives in negotiation over the key matters of access and charging mechanisms for public sector documents. This being the case, we are content to lift the Scrutiny Reserve on these documents.

  However, we should be grateful if you would report to us the outcome of the Telecommunications Council on 5 December 2002.

4 December 2002

Letter from Stephen Timms and Douglas Alexander

  Thank you for your letter of 4 December 2002 in which you ask for a report on the outcome of the Telecommunications Council on 5 December 2002, at which Stephen Timms represented the United Kingdom.

  As you say in your letter, most of the UK concerns have been met to date. On 5 December the Presidency asked that Member States should focus on the three key policy issues which emerged during the discussions within the Council Working Group. These are:

    —  the need to protect Intellectual Property Rights (IPR), including that of public sector bodies;

    —  the ability of public sector bodies to charge for the re-use of material;

    —  public sector bodies not being obliged to allow the re-use of public sector information in all cases.

  The proposed Directive was generally welcomed by Member States, but with some reservations. On the one hand the Netherlands, Sweden and Finland would have liked the Directive to go further, particularly in obliging public sector bodies to make all their material available on a marginal cost basis. The UK view, and that of most other Member States, is that the ability of public sector bodies to charge and, if appropriate, seek a reasonable return on investment, is essential, and this is retained in the text. The Netherlands, Sweden and Finland, in a spirit of compromise, accepted the Presidency text.

22 January 2003

Letter from the Chairman to Stephen Timms and Douglas Alexander

  Thank you for your letter dated 22 January 2003 setting out the outcome of the Telecommunications Council on 5 December 2002 which Sub-Committee B considered at its meeting on 3 February.

  We are grateful to you for this helpful analysis of what transpired at the Council. We look forward to being told when general agreement has been reached.

5 February 2003

Letter from the Chairman to Stephen Timms

  Thank you for your Explanatory Memorandum dated March 2003 and the undated covering letter. Sub-Committee B considered these papers at its meeting on 24 March.

  We are grateful to you for keeping us informed of the outcome of the first reading debate in the European Parliament. As you say, the amendments are not particularly helpful, but do not, at this stage, directly threaten the key UK concerns of access, charging principles, and scope. In any case, we note that there is general agreement in Council that they should be rejected. Can you confirm this has happened?

  We look forward to a similar account when the European Parliament's second reading takes place.

26 March 2003


 
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