Brussels: 13 June 2008

During the opening plenary session of the ePSIplus Conference – PSI Re-use: Who takes action next? Mr Horst Forster, Director ‘Content’ of the European Commission’s Directorate General for Information Society and Media of the European Commission called for more hard evidence as to where the Directive 2003/98/EC is or is not working. Mr Forster also outlined in his speech and afterwards in response to questions from the floor that there are both advantages and disadvantages from reviewing a Directive but he emphasised (more then once) that the Commission has not come to a conclusion yet. The Commission would not come to a conclusion until the results of the economic study that the Commission has initiated reports towards the end of July 2008 and the open consultation has closed.

Mr Forster indicated that other supporting evidence is needed to assist the Commission in deciding what action to take next with respect to the PSI Directive and encouraged all present at the Conference to partake in the open consultation – a point re-iterated by Mr Javier Hernandez-Ros of the European Commission in the closing panel session.

In response to the call for further evidence was required Mr Adrian Norman, Psiphon Limited, UK made the point that as the Directive did not make it compulsory for a public sector body to make the information holdings available for re-use many public sector bodies just refused and one consequence of this was that there was no evidence as there was no practical experience – this itself was evidence and it was not just a case of the private sector not being interested – they were interested but they had the door slammed in their face with the existing Directive supporting such action!

Mr Richard Pettifer Secretary General of PRIMET also strongly advocated that the evidence was there especially in the meteorological sector where the public sector bodies do allow the re-use but the constraints that the public bodies apply are such that no SME is able to exploit the opportunity – for example the prices charged.

A further point made by Mr Forster in his speech and during the question and answer period that followed was that substitute date and information was now entering the market and this in itself was also evidence. Mr Forster in his speech referred to this as a diversion of economic potential.

During the debate in the parallel session related to Pricing and Charging several pertinent points were made:

1. Where was the evidence that supported the original case for the Directive and why was this not being used as evidence together with the outcomes of the MEPSIR, MICUS and other Member State studies?
2. Mr Juan Pelegrin of the European Commission reported that when Commission staff submit a request to review an existing Directive a completed impact assessment must accompany the submission and it is the impact assessment that requires the supporting evidence.

With respect to impact assessments – the European Commission has recently opened a consultation on the Commissions impact assessment guidelines and the draft guidelines make specific mention of Framework Directives such as Directive 2003/98/EC.

The European Commission – Impact Assessment Guidelines [Draft version 27/05/2008] states:

“5.4.5 Assessment of transposition and compliance aspects

The Treaty requires that any action should be as simple as possible and leave as much scope for national decision as possible. Impact assessments must therefore deal with issues of implementation, management and enforcement. "Maximum effort should be made to ensure the clarity, simplicity, operability and enforceability of legislation."(33)

When you consider compliance issues, you need to remember that EU rules are in general implemented by Member State authorities. Your compliance analysis therefore needs to take account of possible variations in how Member States implement the rule. For example, framework directives leave considerable scope for flexible implementation at Member State level. This could have a knock-on effect on compliance by the target groups in different countries. In the case of Directives, it is important to be aware of national difficulties in implementing certain requirements.

(33) - Cf. Commission Communication "A Europe of results – applying Community law", COM (2007)502 final.”

The Revised annexes – draft version 27 May 2008 state:

“6.7. Framework directives

In its Action plan ‘Simplifying and improving the regulatory environment11, the Commission committed itself to revert to the original definition of a directive as laid down in the Treaty, that is, to limit the content of a directive to the essential aspects of legislation. Hence, directives should, as far as possible, be general in nature and cover the objectives, periods of validity and essential aspects of legislation, while technicalities and details should be a matter of executive measures or be left to Member States.

Framework directives set out general principles, procedures, and requirements for legislation in different sectors. Subsequent 'daughter' directives in each sector must conform to the general requirements of the framework directive.

While framework directives offer greater flexibility to Member States, their disadvantage is that they risk resulting in a diversity of more or less incompatible measures being implemented in different Member States. However ‘daughter directives’ should not undo the flexibility gained by being overly prescriptive. In accordance with the Inter-Institutional Agreement on Better Lawmaking(22) a proper balance should be struck between general principles and detailed provisions, in a manner that avoids excessive use of Community implementing measures.

(22) - OJ C 321/1 of 31 December 2003

In the panel session at the end of the Conference programme Mr John Dolan, Ministry of Finance Ireland in his reaction to the days proceedings made the observation that public sector bodies in Ireland could not see the value in diverting resources to complying with the Directive as they could not detect any re-users within the Irish market and no interest was evident from the private sector. As a result the public sector information holders decide not to make their PSI holdings available as is there right under the current Directive. This then led to the question what was the value of the Directive? One may as well not have it!

Please submit reactions to this news item on the ePSIplus Forum or by email to the Conference Chair