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


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)

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 bodies of the Member
States
Public Undertakings. Thematic Seminar 3 (PSI and Competition)

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 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
Public Undertakings. Thematic Seminar 3 (PSI and Competition)

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)

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)

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)

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 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
Public Undertakings. Thematic Seminar 3 (PSI and Competition)

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)

Public Undertakings. Thematic Seminar 3 (PSI and Competition)

 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)

 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)

 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)

 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)

Public Undertakings. Thematic Seminar 3 (PSI and Competition)