Belgium prepares for late implementation EU Directive

06 September 2006

Patrick Michielsen

Background

The public sector offers a huge resource of information including administrative and governmental data, documents, texts and public registers. Public sector bodies collect, (re)produce and disseminate vast amounts of public sector information (“PSI”), ranging from political, social, financial, legal, patent and business data over spatial, transport, scientific and educational data to cultural, weather and tourist data. This information is of interest to citizens, organisations, private businesses and other public sector agencies.

The EU Directive 2003/98/EC on the reuse of public sector information of 17 November 2003 (the “Directive”) forests out rules applicable in all the Member States as to the re-use of public sector information resources. The aim of this Directive is to lower the barriers which EU content companies face while they develop new cross-border information services and products.
This Directive had to be implemented by 1 July 2005 by all EU Member States.

Implementation strategy in Belgium

Unlike Member States such as France, the United Kingdom and The Netherlands that have already implemented the Directive, the implementation in Belgium of EU legislation traditionally takes more time due to the various legislative and governmental bodies involved at the different state levels (federal and regional levels). On 4 April 2006 the EU Commission issued an opinion in respect of Belgium’s failure to implement the Directive by the due date.

The implementation has been split into different parts and interdepartmental working groups have been set up both at the federal level and at the regional and community levels.

Belgium has chosen to implement the Directive via an Act which is separate from the existing legislation on access to administrative documents for individuals based on the Act of 11 April 1994. The Directive builds on the existing access regimes in the Member States and does not change the national rules for access to documents. The reuse regime does not apply in cases in which citizens or companies can, under the relevant access regime, only obtain a document if they can prove a particular interest.

The upcoming implementation Act is expected to be accompanied by secondary legislation under the form of Royal Decrees relating to procedural and commercial issues (such as pricing) relating to the re-use of information. It is not expected that the Act will enter into force before these Royal Decrees have been adopted.

At regional and community level, Flanders will also adopt a decree that will focus on the policy and the general framework for ensuring reuse of public sector information of the Flemish governmental bodies. Wallonia and Brussels will equally adopt their own legal texts. These local implementations will be as much as possible in line with the implementation guidelines at the federal level.

The federal implementation: key provisions of the Bill

On 18 November 2005 the Belgian Secretary of State for the Simplification of Public Administration issued a pre-draft of the implementation Act, which was approved on 30 June 2006 by the federal government (hereinafter “Bill”). The Bill is intending to implement the Directive faithfully, whilst dealing with some national particularities.

In line with the Directive, the Bill and its Explanatory Memorandum spells out that public sector information (“administrative documents”) comprises any content or part thereof, consisting of a representation of acts, facts or information - and any compilation of such acts, facts or information - whatever its medium (e.g. written on paper, or stored in electronic form or as a sound, visual or audiovisual recording held by public sector bodies. Computer programs are not included within the definition of administrative documents.

A document held by a public sector body is a finished document whose re-use the public sector body is lawfully entitled to authorise or refuse. A body will be entitled to authorise or refuse re-use where it has produced such documents, it collects documents or it exercises control over these documents. The Bill does not contain an obligation to allow re-use of documents. The decision whether or not to authorise re-use will remain with the public sector body concerned. Some public bodies are excluded from the scope of the Bill (for instance public broadcasting entities, schools and research institutions).

The Bill defines "re-use" as the use of information, under license, sale, dissemination, exchange or otherwise, held by public sector bodies for commercial or non-commercial purposes, other than for the original purpose for which the information was produced. The Bill excludes from its scope amongst others any documents over which third parties have intellectual property rights. Public sector information that is already freely and unconditionally available prior to the implementation of the Act will not be affected by the upcoming Act. Also, the exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use.

Under the Bill, any request for re-use will have to be made in writing to the relevant public body. In some cases the re-use of documents could occur without a formal licence being agreed. In other cases a licence will be issued by the relevant public sector body imposing conditions on the re-use by the licensee dealing with issues such as liability, the proper use of documents, preventing alteration and requiring the source of the information to be acknowledged. The licence conditions should be fair, transparent and made public in advance. The EU Directive encourages making use of standard licenses whereby a license template should be worked out for the conditions of reuse without restricting lawful reuse or fair competition. A model license together with an explanatory memorandum has been drafted by the Secretary of State for the Simplification of Public Administration and submitted to other public bodies for further comment.

The public administration can charge for making the information available: it is entitled to ask for a charge for the dissemination of data or documents. The price must be cost oriented, but may in some cases also include a reasonable return on investment. The principle of transparency requires public bodies to justify its prices. To this end an analytical accounting method will be developed with input from the Ministry of Finance.

The Bill provides for a possible appeal to the existing Commission for Access to Public Documents. The Commission could check that parties who are reusing public sector information are complying with the terms of the license agreements or could monitor any public bodies which make information available on an exclusive basis A Royal Decree shall be adopted to determine the procedure under which an appeal can be lodged.

The Bill imposes a non-discriminatory regime of reuse and all existing exclusivity arrangements for reuse will be terminated at the latest on 31 December 2008 after which they will automatically be subject to the regime of the Bill.

Finally there is currently no complete list of PSI assets in Belgium but the documents that will be available for reuse, the standard license terms and remunerations will be inventoried and published on the portal sites of the federal and regional governments in due course.

Opinion of the Belgian Data Protection Commission

On 8 February 2006 the Belgian Data Protection Commission gave its opinion (n° 04/2006) on certain privacy related aspects of the draft text of the Bill.

The draft text of the Bill expressly allowed the disclosure of public documents containing personal data insofar as such data are made anonymous by using reasonable means and the public body decides that dissemination is appropriate. A public body is not obliged to, but may charge for the costs of the anonymisation process. A debate has taken place between the government and the Data Protection Commission who consider that the provision in the Bill, with its reference to "reasonable" means, leaves too much flexibility to public bodies. It considers that the obligation to render the data "anonymous" should comply with the strict meaning of the data protection legislation, i.e. an outright obligation to ensure that no individuals are identifiable. This privacy recommendation has been upheld in the final text of the Bill as adopted by the federal government.

The Bill also intends to abolish section 10 of the federal Act of 11 April 1994 on access to administrative documents which provided that public information obtained pursuant to this Act may not be distributed or used for commercial purposes. Notwithstanding the different scope of application of both Acts, the Data Protection Commission has argued that the deletion of this general prohibition would pose a serious threat for the existing personal data protection under the 1994 Act, since a third party could in practice request public sector information containing personal data in accordance with the 1994 Act and reuse it for commercial purposes under the new Act. This privacy recommendation, however, has not been upheld in the final text of the Bill as adopted by the federal government.

Meanwhile the Data Protection Commission has also rendered a similar opinion on the privacy related aspects of the draft text of the Walloon draft Decrees.

Conclusion

The Bill was recently introduced in the federal Parliament on 12 July 2006 where the responsible Parliamentary Commission will further deal with the implementation by following the priority lawmaking procedure.

Public institutions (at all levels) as well as the various interested industry players will have to monitor and observe the upcoming regulatory framework in Belgium closely. In particular, both sides should carefully review their existing or future relationships in light of the guiding principles laid down in the upcoming regulatory framework regarding the re-use of public sector information.