Breaking down exclusive deals – the Dutch way Pamela Young Ministry of the Interior and Kingdom Relations Public Sector Innovation and Information Policy Department The Netherlands and Marc de Vries EPSIplus Analyst

Article 11 PSI Directive Prohibition of exclusive arrangements re-use of documents open to all potential actors in the market; no grant of exclusive rights; exception: the public interest; regular review (every three years + transparency); existing exclusive arrangements must be terminated not later than 31 December 2008.

Implementation in Dutch law Act to promote open government (Wob) Various acts with specific provisions on government information Act implementing Directive on re-use of public sector information (article 11g and 16) Full transposition of PSI-directive (2006) Questions raised by the Council of State Study assigned to Marc de Vries in 2006

Background of the study Objective: What are the potential liabilities resulting from the phasing out of exclusive contracts under the PSI Directive? Questions: What exclusive contracts are out there? What are the potential liabilities? So, what do we need to do?

Termination of exclusive agreements Public Content Holder Other re-users Member State Re-user Legislation PSI Direcitive Exclusive re-use contract Re-use contract? European Commission Contract Tort law

Liabilities - Public sector body? Contractual liability Termination clause Force Majeur: just following obligations of EU law Conclusion: should be OK, unless guarantees

Liabilities - Member State? (1) -Starting point: no contract, tort law -Article 1 of the First Protocol of the European Convention on Human Rights: ‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.’

Liabilities - Member State? (2) -Is the exclusive right to exploit PSI to be considered a possession and is that right breached? –YES, YES -What type of breach? –Deprivation of property (compensation is rule) or regulation? –Continuation? (Tre Traktorer case (ECHR 7 July 1989)) -Is there a justification for the breach and is this proportional? –Obligation under EU law –General interest is served – fair competition in internal market

So, how to phase out? Risks are low, but there are some Prudent approach: - Find them - Take concrete steps to phase out What was the Dutch approach? - Pamela -Central government + connected agencies -Limited to those with valuable PSI -50 organisations -4 hits

Steps taken since rapport (Jan 2006) Exclusive contractSteps taken Now in line with Directive? (1) the tide table booklet Information published on internet. Re-use possible yes (2) the Official Publications Modification of law planned before Makes re-use possible not yet (3) the vehicle registration number register Modification of law (the Road Traffic Act). Re-use possible yes (4) the 18th Red Guide (Crop protection) Agreement changed. Information published on internet. Re-use possible yes

Conclusions -Exclusive deals are there but hidden -Risks of being liable limited -Not acting is no option: Governments can not leave this to re-users Directive imposes obligation - infraction risk -Opportunity to raise awareness and market the spirit of the Directive within government -English translation of study available on EPSIplus website