1. In order to promote the use of open data and stimulate innovation in products and services, this Directive establishes a set of minimum rules governing the re-use and the practical arrangements for facilitating the re-use of:
(a)
existing documents held by public sector bodies of the Member States;
(b)
existing documents held by public undertakings that are:
(i)
active in the areas defined in Directive 2014/25/EU;
(ii)
acting as public service operators pursuant to Article 2 of Regulation (EC) No 1370/2007;
(iii)
acting as air carriers fulfilling public service obligations pursuant to Article 16 of Regulation (EC) No 1008/2008; or
(iv)
acting as Community shipowners fulfilling public service obligations pursuant to Article 4 of Regulation (EEC) No 3577/92;
(c)
research data pursuant to the conditions set out in Article 10.
2. This Directive does 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 accordance with common administrative practice in the Member State in question, provided that the scope of the public tasks is transparent and subject to review;
(b)
documents held by public undertakings:
(i)
produced outside the scope of the provision of services in the general interest as defined by law or other binding rules in the Member State;
(ii)
related to activities directly exposed to competition and therefore, pursuant to Article 34 of Directive 2014/25/EU, not subject to procurement rules;
(c)
documents for which third parties hold intellectual property rights;
(d)
documents, such as sensitive data, which are excluded from access by virtue of the access regimes in the Member State, including on grounds of:
(i)
the protection of national security (namely, State security), defence, or public security;
(ii)
statistical confidentiality;
(iii)
commercial confidentiality (including business, professional or company secrets);
(e)
documents access to which is excluded or restricted on grounds of sensitive critical infrastructure protection related information as defined in point (d) of Article 2 of Directive 2008/114/EC;
(f)
documents access to which is restricted by virtue of the access regimes in the Member States, including cases whereby citizens or legal entities have to prove a particular interest to obtain access to documents;
(g)
logos, crests and insignia;
(h)
documents, access to which is excluded or restricted by virtue of the access regimes on 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 or as undermining the protection of privacy and the integrity of the individual, in particular in accordance with Union or national law regarding the protection of personal data;
(i)
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;
(j)
documents held by cultural establishments other than libraries, including university libraries, museums and archives;
(k)
documents held by educational establishments of secondary level and below, and, in the case of all other educational establishments, documents other than those referred to in point (c) of paragraph 1;
(l)
documents other than those referred to in point (c) of paragraph 1 held by research performing organisations and research funding organisations, including organisations established for the transfer of research results.
3. This Directive builds on, and is without prejudice to, Union and national access regimes.
4. This Directive is without prejudice to Union and national law on the protection of personal data, in particular Regulation (EU) 2016/679 and Directive 2002/58/EC and the corresponding provisions of national law.
5. The obligations imposed in accordance with 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, the TRIPS Agreement and the WCT.
6. The right for the maker of a database provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent the re-use of documents or to restrict re-use beyond the limits set by this Directive.
7. This Directive governs the re-use of existing documents held by public sector bodies and public undertakings of the Member States, including documents to which Directive 2007/2/EC applies.
Article 2 -
Definitions
For the purpose of this Directive, the following definitions apply:
(1)
‘public sector body’ means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law;
(2)
‘bodies governed by public law’ means bodies that have all of the following characteristics:
(a)
they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character;
(b)
they have legal personality; and
(c)
they are financed, for the most part by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have 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;
(3)
‘public undertaking’ means any undertaking active in the areas set out in point (b) of Article 1(1) over which the public sector bodies may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it. A dominant influence on the part of the public sector bodies shall be presumed in any of the following cases in which those bodies, directly or indirectly:
(a)
hold the majority of the undertaking's subscribed capital;
(b)
control the majority of the votes attaching to shares issued by the undertaking;
(c)
can appoint more than half of the undertaking's administrative, management or supervisory body;
(4)
‘university’ means any public sector body that provides post-secondary-school higher education leading to academic degrees;
(5)
‘standard licence’ means a set of predefined re-use conditions in a digital format, preferably compatible with standardised public licences available online;
(6)
‘document’ means:
(a)
any content whatever its medium (paper or electronic form or as a sound, visual or audiovisual recording); or
(b)
any part of such content;
(7)
‘anonymisation’ means the process of changing documents into anonymous documents which do not relate to an identified or identifiable natural person, or the process of rendering personal data anonymous in such a manner that the data subject is not or no longer identifiable;
(8)
‘dynamic data’ means documents in a digital form, subject to frequent or real-time updates, in particular because of their volatility or rapid obsolescence; data generated by sensors are typically considered to be dynamic data;
(9)
‘research data’ means documents in a digital form, other than scientific publications, which are collected or produced in the course of scientific research activities and are used as evidence in the research process, or are commonly accepted in the research community as necessary to validate research findings and results;
(10)
‘high-value datasets’ means documents the re-use of which is associated with important benefits for society, the environment and the economy, in particular because of their suitability for the creation of value-added services, applications and new, high-quality and decent jobs, and of the number of potential beneficiaries of the value-added services and applications based on those datasets;
(11)
‘re-use’ means the use by persons or legal entities of documents held by:
(a)
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 for the exchange of documents between public sector bodies purely in pursuit of their public tasks; or
(b)
public undertakings, for commercial or non-commercial purposes other than for the initial purpose of providing services in the general interest for which the documents were produced, except for the exchange of documents between public undertakings and public sector bodies purely in pursuit of the public tasks of public sector bodies;
(12)
‘personal data’ means personal data as defined in point (1) of Article 4 of Regulation (EU) 2016/679;
(13)
‘machine-readable format’ means a file format structured so that software applications can easily identify, recognise and extract specific data, including individual statements of fact, and their internal structure;
(14)
‘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;
(15)
‘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;
(16)
‘reasonable return on investment’ means a percentage of the overall charge, in addition to that needed to recover the eligible costs, not exceeding 5 percentage points above the fixed interest rate of the ECB;
(17)
‘third party’ means any natural or legal person other than a public sector body or a public undertaking that holds the data.
Article 3 -
General principle
1. Subject to paragraph 2 of this Article, Member States shall ensure that documents to which this Directive applies in accordance with Article 1 shall be re-usable for commercial or non-commercial purposes in accordance with 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, those documents shall be re-usable for commercial or non-commercial purposes in accordance with Chapters III and IV.
CHAPTER II - REQUESTS FOR RE-USE
Article 4 -
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 as soon as possible, and in any event within 20 working days of receipt. That time frame may be extended by a further 20 working days in the case of extensive or complex requests. In such cases, the applicant shall be notified as soon as possible, and in any event within three weeks of the initial request, that more time is needed to process the request and the reasons why.
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 provisions transposing this Directive, in particular points (a) to (h) of Article 1(2) or Article 3. Where a negative decision is based on point (c) of Article 1(2), the public sector body shall include a reference to the natural or legal person who is the rightsholder, 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 where the applicant wishes to challenge 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 relevant access to documents authority, the supervisory authority established in accordance with Regulation (EU) 2016/679 or a national judicial authority, whose decisions are binding upon the public sector body concerned.
5. For the purposes of this Article, Member States shall establish practical arrangements to facilitate effective re-use of documents. Those arrangements may in particular include the means to supply adequate information on the rights provided for in this Directive and to offer relevant assistance and guidance.
6. The following entities shall not be required to comply with this Article:
(a)
public undertakings;
(b)
educational establishments, research performing organisations and research funding organisations.
CHAPTER III - CONDITIONS FOR RE-USE
Article 5 -
Available formats
1. Without prejudice to Chapter V, public sector bodies and public undertakings shall make their documents available in any pre-existing format or language and, where possible and appropriate, by electronic means, in formats that are open, machine-readable, accessible, findable and re-usable, together with their metadata. Both the format and the metadata shall, where possible, comply with formal open standards.
2. Member States shall encourage public sector bodies and public undertakings to produce and make available documents falling within the scope of this Directive in accordance with the principle of ‘open by design and by default’.
3. Paragraph 1 shall not imply an obligation for public sector bodies 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.
4. Public sector bodies shall not be required to continue the production and storage of a certain type of document with a view to the re-use of such documents by a private or public sector organisation.
5. Public sector bodies shall make dynamic data available for re-use immediately after collection, via suitable APIs and, where relevant, as a bulk download.
6. Where making dynamic data available for re-use immediately after collection, as referred to in paragraph 5, would exceed the financial and technical capacities of the public sector body, thereby imposing a disproportionate effort, those dynamic data shall be made available for re-use within a time frame or with temporary technical restrictions that do not unduly impair the exploitation of their economic and social potential.
7. Paragraphs 1 to 6 shall apply to existing documents held by public undertakings which are available for re-use.
8. The high-value datasets, as listed in accordance with Article 14(1) shall be made available for re-use in machine-readable format, via suitable APIs and, where relevant, as a bulk download.
Article 6 -
Principles governing charging
1. The re-use of documents shall be free of charge.
However, the recovery of the marginal costs incurred for the reproduction, provision and dissemination of documents as well as for anonymisation of personal data and measures taken to protect commercially confidential information may be allowed.
2. By way of exception, paragraph 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)
libraries, including university libraries, museums and archives;
(c)
public undertakings.
3. Member States shall publish online a list of the public sector bodies referred to in point (a) of paragraph 2.
4. In the cases referred to in points (a) and (c) of paragraph 2, the total charges shall be calculated in accordance with objective, transparent and verifiable criteria. Such criteria shall be laid down by Member States.
The total income from supplying and allowing the re-use of documents over the appropriate accounting period shall not exceed the cost of their collection, production, reproduction, dissemination and data storage, together with a reasonable return on investment, and — where applicable — the anonymisation of personal data and measures taken to protect commercially confidential information.
Charges shall be calculated in accordance with the applicable accounting principles.
5. Where charges are made by the public sector bodies referred to in point (b) of paragraph 2, the total income from supplying and allowing the re-use of documents over the appropriate accounting period shall not exceed the cost of collection, production, reproduction, dissemination, data storage, preservation and rights clearance and, where applicable, the anonymisation of personal data and measures taken to protect commercially confidential information, together with a reasonable return on investment.
Charges shall be calculated in accordance with the accounting principles applicable to the public sector bodies involved.
6. The re-use of the following shall be free of charge for the user:
(a)
subject to Article 14(3), (4) and (5), the high-value datasets, as listed in accordance with paragraph 1 of that Article;
(b)
research data referred to in point (c) of Article 1(1).
Article 7 -
Transparency
1. In the case of standard charges for the re-use of documents, 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 factors that are taken into account in the calculation of those charges shall be indicated at the outset. Upon request, the holder of the documents in question shall also indicate the way in which such charges have been calculated in relation to a specific re-use request.
3. 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.
Article 8 -
Standard licences
1. The re-use of documents shall not be subject to conditions, unless such conditions are objective, proportionate, non-discriminatory and justified on grounds of a public interest objective.
When re-use is subject to conditions, those conditions shall not unnecessarily restrict possibilities for re-use and shall not be used to restrict competition.
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 the use of such standard licences.
Article 9 -
Practical arrangements
1. 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, in particular by enabling metadata aggregation at Union level.
Member States shall also encourage public sector bodies to make practical arrangements facilitating the preservation of documents available for re-use.
2. Member States shall, in cooperation with the Commission, continue efforts to simplify access to datasets, in particular by providing a single point of access and by progressively making available suitable datasets held by public sector bodies with regard to the documents to which this Directive applies, as well as to data held by Union institutions, in formats that are accessible, readily findable and re-usable by electronic means.
Article 10 -
Research data
1. Member States shall support the availability of research data by adopting national policies and relevant actions aiming at making publicly funded research data openly available (‘open access policies’), following the principle of ‘open by default’ and compatible with the FAIR principles. In that context, concerns relating to intellectual property rights, personal data protection and confidentiality, security and legitimate commercial interests, shall be taken into account in accordance with the principle of ‘as open as possible, as closed as necessary’. Those open access policies shall be addressed to research performing organisations and research funding organisations.
2. Without prejudice to point (c) of Article 1(2), research data shall be re-usable for commercial or non-commercial purposes in accordance with Chapters III and IV, insofar as they are publicly funded and researchers, research performing organisations or research funding organisations have already made them publicly available through an institutional or subject-based repository. In that context, legitimate commercial interests, knowledge transfer activities and pre-existing intellectual property rights shall be taken into account.
CHAPTER IV - NON-DISCRIMINATION AND FAIR TRADING
Article 11 -
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 -
Exclusive arrangements
1. The re-use of documents shall be open to all potential actors in the market, even if one or more market actors already exploit added-value products based on those 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 arrangements established on or after 16 July 2019 shall be made publicly available online at least two months before they come into effect. The final terms of such arrangements shall be transparent and shall made publicly available online.
This paragraph shall not apply to digitisation of cultural resources.
3. Notwithstanding paragraph 1, where an exclusive right relates to the digitisation of cultural resources, the period of exclusivity shall in general not exceed 10 years. 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.
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.
4. Legal or practical arrangements that, without expressly granting an exclusive right, aim at, or could reasonably be expected to lead to, a restricted availability for the re-use of documents by entities other than the third party participating in the arrangement, shall be made publicly available online at least two months before their coming into effect. The effect of such legal or practical arrangements on the availability of data for re-use shall be subject to regular reviews and shall, in any event, be reviewed every three years. The final terms of such arrangements shall be transparent and made publicly available online.
5. Exclusive arrangements existing on 17 July 2013 that do not qualify for the exceptions set out in paragraphs 2 and 3 and that were entered into by public sector bodies shall be terminated at the end of the contract and in any event not later than on 18 July 2043.
Exclusive arrangements existing on 16 July 2019 that do not qualify for the exceptions set out in paragraphs 2 and 3, and that were entered into by public undertakings, shall be terminated at the end of the contract and in any event not later than on 17 July 2049.
CHAPTER V - HIGH-VALUE DATASETS
Article 13 -
Thematic categories of high-value datasets
1. In order to provide for conditions to support the re-use of high-value datasets, a list of thematic categories of such datasets is set out in Annex I.
2. The Commission is empowered to adopt delegated acts in accordance with Article 15 in order to amend Annex I by adding new thematic categories of high-value datasets in order to reflect technological and market developments.
Article 14 -
Specific high-value datasets and arrangements for publication and re-use
1. The Commission shall adopt implementing acts laying down a list of specific high-value datasets belonging to the categories set out in Annex I and held by public sector bodies and public undertakings among the documents to which this Directive applies.
Such specific high-value datasets shall be:
(a)
available free of charge, subject to paragraphs 3, 4 and 5;
(b)
machine readable;
(c)
provided via APIs; and
(d)
provided as a bulk download, where relevant.
Those implementing acts may specify the arrangements for the publication and re-use of high-value datasets. Such arrangements shall be compatible with open standard licences.
The arrangements may include terms applicable to re-use, formats of data and metadata and technical arrangements for dissemination. Investments made by the Member States in open data approaches, such as investments into the development and roll-out of certain standards, shall be taken into account and balanced against the potential benefits from inclusion in the list.
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 16(2).
2. The identification of specific high-value datasets pursuant to paragraph 1 shall be based on the assessment of their potential to:
(a)
generate significant socioeconomic or environmental benefits and innovative services;
(b)
benefit a high number of users, in particular SMEs;
(c)
assist in generating revenues; and
(d)
be combined with other datasets.
For the purpose of identifying such specific high-value datasets, the Commission shall carry out appropriate consultations, including at expert level, conduct an impact assessment and ensure complementarity with existing legal acts, such as Directive 2010/40/EU, with respect to the re-use of documents. That impact assessment shall include a cost-benefit analysis and an analysis of whether providing high-value datasets free of charge by 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 would lead to a substantial impact on the budget of such bodies. With regard to high-value datasets held by public undertakings, the impact assessment shall give special consideration to the role of public undertakings in a competitive economic environment.
3. By way of derogation from point (a) of the second subparagraph of paragraph 1, the implementing acts referred to in paragraph 1 shall provide that the availability of high-value datasets free of charge is not to apply to specific high-value datasets held by public undertakings where that would lead to a distortion of competition in the relevant markets.
4. The requirement to make high-value datasets available free of charge pursuant to point (a) of the second subparagraph of paragraph 1 shall not apply to libraries, including university libraries, museums and archives.
5. Where making high-value datasets available free of charge by 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 would lead to a substantial impact on the budget of the bodies involved, Member States may exempt those bodies from the requirement to make those high-value datasets available free of charge for a period of no more than two years following the entry into force of the relevant implementing act adopted in accordance with paragraph 1.
CHAPTER VI - FINAL PROVISIONS
Article 15 -
Exercise of the delegation
1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
2. The power to adopt delegated acts referred to in Article 13(2) shall be conferred on the Commission for a period of five years from 16 July 2019. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.
3. The delegation of power referred to in Article 13(2) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.
4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.
5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
6. A delegated act adopted pursuant to Article 13(2) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.
Article 16 -
Committee procedure
1. The Commission shall be assisted by a Committee on open data and the re-use of public sector information. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.
2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.
Article 17 -
Transposition
1. Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 17 July 2021. They shall immediately communicate the text of those measures to the Commission.
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 Directive 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 18 -
Commission evaluation
1. No sooner than 17 July 2025, the Commission shall carry out an evaluation of this Directive, and submit a report on the main findings of that evaluation to the European Parliament and to the Council as well as to the European Economic and Social Committee.
Member States shall provide the Commission with the information necessary for the preparation of that report.
2. The evaluation shall, in particular, address the scope and social and economic impact of this Directive, including:
(a)
the extent of the increase in re-use of public sector documents to which this Directive applies, especially by SMEs;
(b)
the impact of the high-value datasets;
(c)
the effects of the principles applied to charging and the re-use of official texts of a legislative and administrative nature;
(d)
the re-use of documents held by other entities than public sector bodies,
(e)
the availability and the use of APIs;
(f)
the interaction between data protection rules and re-use possibilities;
(g)
further possibilities of improving the proper functioning of the internal market and supporting economic and labour market development.
Article 19 -
Repeal
Directive 2003/98/EC, as amended by the Directive listed in Annex II, Part A, is repealed with effect from 17 July 2021, without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law and the dates of application of the Directives set out in Annex II, 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 III.
Article 20 -
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.
