On 30 September 2021, the European Commission announced that it opened infringement proceedings against 19 Member States for failing to notify to the Commission the measures transposing into their national laws the Directive 2019/1024 on open data and the re-use of public sector information, also known as the Open Data Directive.[1] The Directive aims to update the Directives 2003/98/EC and 2013/37/EU on the re-use of public sector information (the Public Sector Information (PSI) Directives), in order to reduce market entry barriers, in particular for SMEs, to reduce first-mover advantages and to promote transparency and accountability.[2] The measure’s aim is hence to facilitate the dissemination and re-use of data held by State, regional or local authorities and bodies, by public undertakings operating in the water, energy, transport and postal services sectors, by public undertakings acting as public service operators, or acting as air carriers or shipowners fulfilling public service obligations.[3] Pursuing the continuity of its preceding legal acts, the Open Data Directive allows the re-use of those documents for non-commercial and commercial purposes.[4] But one of the Open Data Directive’s particularities is that it introduces a new concept: high-value datasets.
High-value datasets are “documents the re-use of which is associated with important benefits for society, the environment and the economy”, but they can only cover one of the six following themes: geospatial, earth observation and environment, meteorological, statistics, companies and company ownership and mobility.[5] But this is not a closed list, the Commission can modify this list according to market developments.[6] But in order to give effect to the concept of high-value datasets, the Commission will adopt further implementing acts specifying what documents qualify as high-value datasets.[7] Whereas the Commission announced that it would adopt an implementing act on high value-datasets in the first quarter of 2021 in order to guide Member States in transposing the Directive, there is at the time of writing no sign of such act, although the Directive’s transposition period elapsed since 17 July 2021.[8]
The characteristics of high-value data is that they must be made available free of charge, provided in machine readable format, via standardised application programming interfaces (APIs) (e.g. GMZ, CSV, ZIP, PDF) and where relevant as a bulk download.[9] However, some exceptions may apply. The most important one is that the Directive cannot apply in a manner incompatible with the exercise of intellectual property rights.[10] Additionally, by means of implementing acts, the Commission may exempt certain specific high-value datasets held by public undertakings to be made available free of charge if the re-use of those documents may distort competition.[11] High-value datasets in the possession of libraries, university libraries, museums and archives are also exempted from being free of charge.[12] Finally, public sector bodies can benefit from an exemption from the free of charge requirement up to two years after the publication of the Commission implementing act if the dissemination of high-value datasets free of charge would impact their budget.[13]
The actors that are expected to benefit the most from high-value datasets are start-ups and SMEs.[14] Studies indeed suggest that with a better availability of data, SMEs will benefit from a more rapid growth than without.[15] With the rapid development of the open data market, it has thus become necessary to ease access to and re-use of public sector information, as the retainment of data can constitute a barrier to enter markets to new undertakings.[16] As a result, the introduction of high-value datasets is expected to reduce the distortion of competition within the internal market and to promote the creation of innovative products and services.[17] But, on the other hand, there is a concern that the Directive may have the opposite effect and strengthen the market position of large and wealthy companies.[18] Hence, it is suggested that the re-use of high-value datasets should be closely monitored to ensure that the Directive fulfils its purpose, which is to benefit SMEs instead of larger companies.[19]
The most expected impact of high-value datasets is to create opportunities for SMEs to expand their business overseas, as a result of the interoperability and the standardisation of the format under which those data are provided.[20] Indeed, the obligation to provide high-value datasets under a standardised format will ease the comparison and the re-use of data from different Member States. Nevertheless, the Open Data Directive sets a minimum standard of harmonisation, meaning the different Member States may have differing views on the value of certain data and whether they qualify as high-value datasets. Hence, the re-use of data may still be limited by national borders.[21]
Altogether, the Open Data Directive, through high-value datasets, raises hope for data re-users, especially SMEs and start-ups, as it is expected that it will reduce barriers to enter the digital market and support innovation in the service and product supplies. Additionally, the Directive is also expected to promote the cross-border exploitation of data which will benefit the development of the internal market but also of society. However, there are concerns that the Directive may not achieve these objectives. But it may be too hasty to criticise the Directive’s effects, since the Commission did not yet adopt any implementing acts specifying the documents which must be defined as high-value datasets across the EU and the Directive only became effective a few months ago. The results of the Open Data Directive can be convincing, but it all depends on the execution, whether the re-use of high-value datasets will be monitored and measured in order to ensure that SMEs will be the biggest beneficiaries and whether there will be a convergence of practice among Member States on the qualification of specific data as high-value datasets. But this cannot be deduced from the Directive itself, perhaps the Commission is planning to consolidate the Open Data Directive with the adoption of other legal or non-legal acts within the framework of its digital strategy.
[1]European Commission, ‘Press Corner’ (European Commission, 30 September 2021)<https://ec.europa.eu/commission/presscorner/detail/en/mex_21_4962> accessed 4 October 2021.
[2] Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information (Open Data Directive) [2019] OJ L172/56, recitals 13, 14, 36 and 51.
[3] Open Data Directive (n 2), recital 3 and art 1.
[4] ibid. art 3.
[5] Open Data Directive (n 2), art 2(10) and Annex 1.
[6] ibid. art 13(2).
[7] ibid. art 14.
[8] European Commission, ‘Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: A European strategy for data’ COM(2020) 66 final; ‘Public kept in the dark over European Commission decision making on opening company ownership data’ (20 September 2021) Access Info <https://www.access-info.org/2021-09-21/public-kept-in-the-dark-over-european-commission-decision-making-on-opening-company-ownership-data/> accessed 4 October 2021; Open Data Directive (n 2), art 17.
[9] ibid. art 14(1).
[10] ibid. recital 61 and art 1.
[11] ibid. art 14(3).
[12] ibid. art 14(4).
[13] ibid. art 14(5).
[14] ibid. art 14(2)(b); ‘Communication from the Commission: A European strategy for data’ (n 8).
[15] Deloitte, ‘Study to support the review of Directive 2003/98/EC on the re-use of public sector information, Final Report’ (2018), 39.
[16] European Data Portal, ‘Open Data Maturity in Europe 2017: Open Data for a European Data Economy’ (2020), 41; Marco Iansiti, ‘The Value of Data and Its Impact on Competition’ (2021) Harvard Business School Working Paper 22-002, 4 <https://www.hbs.edu/ris/Publication%20Files/22-002submitted_835f63fd-d137-494d-bf37-6ba5695c5bd3.pdf> accessed 4 October 2021.
[17] ‘Study to support the review of Directive 2003/98/EC’ (n 15), 19.
[18] European Data Portal, ‘Analytical Report 15: High-value datasets: Understanding the perspective of data providers’ (2020), 17.
[19] ibid.
[20] ibid.
[21] ibid.; European Data Portal, ‘Open Data Maturity Report 2020’ (2020), 12.
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