The Declaration of the Cadastre in European Union A vision to its inmediate antecedents

Transcription

1 The Declaration of the Cadastre in European Union A vision to its inmediate antecedents This document aims to comment the Principles contained in the Declaración of the Cadastre in the European Union from the analysis of its antecedents. In this sense, it has been tried to show the syntony of the principles contained in the Declaration with already issued documents by the different organisms related to the Cadastres. 1. The Cadastre as a basic land information system will cover the entire EU territory. None of the States, nor part of them,will lack of the needed information that the Cadastre provides. The term Cadastre has been used with diferente purposes in different countries, and therefore has different meanings. The following definitions were established by the UN experts group on Cadastre and Land Information Systems. Cadastre is a methodically arranged public inventory of data concerning properties within a certain country or district, based on a survey of their boundaries. Such properties are systematically identified by means of some separate designation. The outlines or boundaries of the property and the parcel identifier are normally shown on large-scales maps which, togheter with registers, may show for each separate property the nature, size, value, and legal rights associated with the parcel. It gives an answer to the questions where and how much. Cadastre use to be multifunctional. A developed cadastral system provides at the same time: - Perfect mechanisms for Property Rights reinforcement. - Instruments to promote the Real Estate credit and secure the properties traffic. - Public Land Information Systems and public land monitoring. - Real Estate based tax systems. tool. Without evolved cadastral systems, all this is not possible. We will analyze why an evolved cadastral system is an important development 1

2 Agenda 21, the Global Action Plan and the role of the Cadastral Systems Many countries already recognize the necessity of a cadastral system. Agenda 21and the Global Action Plan HABITAT II provide additional justifications for the establishment and maintenance of a cadastral system that serves the different necessities of the nations and their citizens. Both documents talk about the environmental protection, sustainable development and better standards of life for all. as: Aims as well to identify by the land managers main areas of responsibility such - Access to the information - The development of suitable data bases - The information exchange - Land use and transport planning - Legal measures on land tenure A call to the land managers is made in order to create efficient and accessible land markets, by means of the improvement of the land registry systems, the rationalization of the land transmission procedures and to establish correct land tenure to provide security to all land users specially the indigenous people, the women and the poor. Some key activities or institutions proposed by Agenda 21 or Global Action Plan HABITAT II stress the importance of cadastral systems for sustainable development and environmental management. This includes clear and secure deeds to facilitate access to land, sustainable human settlements, efficient land information and land management systems. Declaration of the UN-FIG of Bogor on cadastral reform (1996) The Declaration of Bogor, Indonesia, were established in the meeting organized in 1996 by the United Nations Department for Development Support and Management Services (DDSMS). In collaboration with the FIG, the declaration establishes operative and strategic guidelines for the implementation of the definition previously mentioned: The definition given in 1995 by the FIG is expanded by declaring that The future cadastres would have: 1. To develop modern cadastral infrastructures in order to facilitate efficient land markets, property rights protection for all, and to support the sustainable development and the land management in the long term. 2. To facilitate the development and planning of National Cadastral Infrastructures so that they can fully serve the urban populations increasing necessities. This is the result of the fast expansion of the cities that is taking place and that will continue throughout all XXIth century. 2

3 The Cadastre is an instrument of Real Estate policy: Declaration on the Cadastre of FIG 1995: The cadastres are Public Information Systems that reflect the rights, uses and values of the parcels. For that reason they are excellent instruments for the identification of problems associated with the implementation and development of real estate policies. The Cadastre facilitates the control of the following aspects: 1. As it has surface of the parcels data, it can detect uneconomic or illegal divisions of property. During XIXth and most part of the XXth century, a priority in most of the European countries was the land consolidation. 2. By means of the cartographic information, the shape, size and disposition of the parcels can be known, as well as the territorial property structure. This information facilitates the design of infrastructures (roads, railroads), and the city planning. 3. Mainly in developing countries, allows to improve redistribution social policies, access to land for deprived groups, correct design of house policies and agriculture. 4. By means of the valuation of the buildings, it is a powerful instrument of fiscal policy, and allows the implantation of tax figures that burden so much to the real estate wealth, like the patrimonial transmissions, the return of the externalidades generated by the powers public in the buildings. 5. It allows the intervention of the State in the design of land policies and the management of the public land The Cadastre is an effective tool and a basic Infrastructure for the sustainable development. - Bathurst FIG Declaration Links Agenda 21 Habitat II Reference documents Bogor Declaration FIG Statement on Cadastre

4 2. Irrespective of the legal pattern adopted by each Member State for its management, the Cadastre is defined as a public property. Its use will always be aimed to guarantee the exercise of the equality, the security and the justice principles, to all the EU citizens. Its definition as public property grounds in the nature of the information that manages, partly protected, and in the necessity for public authorities to ensure it existence and updating. Refering to equality, the security and the justice principles, the Treaty on European Union establishes: Article 2 (ex Article B) The Union shall set itself the following objectives: To promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty;.. To maintain and develop the Union as an area of freedom, security and justice... Links Treaty on European Union 3. The Cadastre basic unit is the land parcel. Therefore, it will be understood that the authorities in charge of the Cadastre, in each Member State, are those organisations in which the responsibility for the creation and updating of the land parcel graphical, alphanumerical, and its aggregated information, relies. In all western countries, there is a spatial hierarchy on the territorial configuration. This hierarchy is established in all steps of services provided by the State. Trying to define the most suitable feature to modelling real world s variables which are interesting to the Public Administration, we will need: 1. Complete covering of territory. 4

5 2. A suitable size for each piece of information in order to optimize real world s modelling. Land Parcel is the basic step in territorial hierarchy. It s the basic geographic unit, and the core ocupation and use piece. It is the Land Object on which Cadastres are most interested; irrespective of their purpose. built. he parcel is therefore the land object on which wide Information Systems can be Basic attributes related to parcel are holders, uses, productive intensities, buildings characteristics, restrictions on the exercise of rights, degrees of environmental protection and other data. On the other hand, the addition of parcels generates territorial units on which is possible to establish statistics (polygons, census sections, districts). As before has been explained, the cadastres have as main feature the maintenance of data related to parcels, both cartographic as literal. This distinguish cadastres between other land related registers. Basically, a parcel is a land piece fisically and juridically defined, and belonging to a holder. This definition, nevertheless, is constantly evolving. FIG proposal in Cadastre 2014 extends the definition to Land Object. The parcel is the Land Object that allows the linkage between the territorial world and the holder s subjetive world. FIG Statement on the Cadastre (1995) Cadastre is defined by FIG as follows: A Cadastre is normally a parcel based, and up-to-date land information system containing a record of interests in land (e.g. rights, restrictions and responsibilities). It usually includes a geometric description of land parcels linked to other records describing the nature of the interests, the ownership or control of those interests, and often the value of the parcel and its improvements. It may be established for fiscal purposes (e.g. valuation and equitable taxation), legal purposes (conveyancing), to assist in the management of land and land use (e.g. for planning and other administrative purposes), and enables sustainable development and environmental protection. Commision 7 of FIG in Cadastre 2014 This document defines Land Object, one of those (maybe the most important) is the parcel. The document established that: A land object is a piece of land in which homogeneous conditions exist within its outlines. 5

6 These conditions are normally defined by law. Every society creates the rules for the co-existence of its members. These rules, normally in the form of laws, define how a society will understand the phenomena within the area in which it lives. In the same manner the rights and the duties of the members of a society are defined. These duties are, in most cases, defined by restrictions of the freedom of individuals. A piece of land, where either a private or a public law imposes identical juridical parameters could be called a legal land object. The laws define the outlines of a right or a restriction. The legal land objects normally are described by boundaries which demarcate where a right or a restriction ends and where the next begins and the contents of that right. Examples of legal land objects are: private property parcels; areas where traditional rights exist; administrative units such as countries, states, districts, and municipalities; zones for the protection of water, nature, noise, pollution; land use zones; areas where the exploitation of natural resources is allowed. Reference documents Cadastre Every parcel will be given an unique and unalterable code, unlike any other. Whenever it will be possible, this identifier will content all the elements to allow its precise location through a proper system of geographic co-ordinates. WPLA Inventory on Cadastral Systems in Europe detected by survey two main modalities on registering property boundaries: 1. Register of boundaries precisely defined by co-ordinates. 2. Boundaries defined by topographical survey, or in relation to a topographic map. The location code can be the co-ordinates secuence, the co-ordinates of the parcel center, a numeric identifier assigned by cadastral authority, or even the adress, if there isn t any other parcel with the same one. In Cadastre 2014 The handling of spatial objects requires more sophisticated software solutions than bookkeeping, but progress in this domain is accelerating. Spatial objects are nowadays not far from becoming normal objects of information processing. The spatial 6

7 components of objects in object oriented models (and cadastral model is object oriented as we have seen before) are nothing more than attributes defining the location and shape of the object. Those attributes can be the parcel codes. Links WPLA Inventory of Land Administration Systems in Europe and North America 5. Every single land parcel, as well as any building or any fixed improvement built under or over it will be accurately described in the cadastres. Thereby, data models, including land tenure information, boundaries, areas, as well as existent buildings or improvements, land capability classifications, land use and environmental quality will have to be properly defined. Parcel attributes are those that provide added value to the cadastral information and make the cadastral information functional for other applications, such as Real Estate valuation, land registry, decision support or for the private sector purposes. Those attributes have considerable variations from a country to another one, depending on the function given to the Cadastre. The most important attributes of parcels could be: Holder Constructions and improvements on the parcel. Land use, agricultural use. Value, sometimes can be separated between the one of the ground and the one of the improvements that exist on the same parcel. Some countries have described which could be the core cadastral data. Links UNECE Land Administration Guidelines 7

8 6. Besides this common information, the cadastres will be managed as open databases, able to include any other land parcel information according to the needs of both, Member States and the European Union. Indeed a special attention will be paid to essential information that assists real estate taxation or land-use planning. Likewise the cadastres will include the information and computerised applications to allow a real estate mass appraisal. In the document Land Administration Guidelines, by the UNECE in its section III Financial Aspects, can be found subjects related to the land value, methods of Real Estate appraisal, and the nature of the land markets. Express mention to the inherent advantages of mass computerized real estate valuations is made as well. Computerization of the processes of valuation has many advantages, since much of the data tends to be uniform in character, requiring repetitive processing and often quite complex analysis. Computers may be used in the creation and maintenance of valuation databases, to analyse price and cost data, to determine general market trends, to carry out investment and statistical analysis and to maintain departmental accounts and other records. The use of computers should lead to improvements in the levels of performance and service provided by an assessing office, particularly with regard to the accuracy and speed with which valuations can be undertaken. They should reduce clerical costs and eventually reduce the unit cost of an appraisal or assessment... There is some advantage in setting up a central valuation agency either within the cadastral authority or else in close cooperation with it in order to ensure: A uniform application of laws and standards; Greater economy, by the reduction in the duplication of records, staff and effort... The opportunity especially through computerization to coordinate large volumes of land sales data; The monitoring of land sales to detect land speculation or to identify social or economic changes that are reflected in the land market data. Links UNECE Land Administration Guidelines 8

9 7. The information recorded in the Cadastre and the Land Register will be correctly co-ordinated. The linked utilisation of the information included in both, Cadastre and Land Register, will guarantee a peaceful exercise of the land tenure legal rights, protecting and improving the land market and its investments in the EU. The different existing Cadastral Systems in Europe are in greater or smaller measurement coordinated with the Land Registry. In some countries, both even constitute the same institution. This situation is due to historical circumstances, or because of different property rights reinforcement legislation. Regardless of this and the existence of different land registry systems, the modern land registry activity advances towards the existence of a cartographic survey able to reflect the situation and characteristic of the properties to register. Links WPLA Report on "Key Aspects of Land Registration and Cadastral Legislation" 8. The cadastres will be managed through computerised tools to permit a better treatment and access to information, and will incorporate those technologies that guarantee the development of the Information Society. These computerised tools will ensure coordination with regional and local administrations that also manage territorial data. In order to implement this coordination, interoperability of the information has to be reached. The Computerization of the Cadastres The document Land Administration Guidelines prepared by the Economic Commission for Europe of the United Nations in 1993, in its section G The role of the computerization establishes that: One of the major catalysts for change has been computerization. The benefits of a land administration system can be enhanced by using computers to: Force standardization in the collection and processing of land information; Speed up the processes of first registration of title; Decrease the cost and space required for storing land records; 9

10 Prevent unnecessary duplication; Simplify the preparation of "disaster" copies of registers; Facilitate access to land-related data and improve their distribution; Reduce the time and cost involved in transferring property rights and in processing mortgages; Facilitate the monitoring and analysis of market and rental values of land and property; and Provide built-in mechanisms for quality control. The conversion of data into computer-readable form is often an expensive and time-consuming task that can account for three quarters of the cost of setting up a computerized system. The quality of data may be poor and their conversion into digital form will not necessarily improve this. The introduction of computers is however more than a technical matter, since it introduces changes in the skills and responsibilities needed within an organization, its organizational structure, investment strategies and such like. Within a government-run cadastral system, computerization may involve changes in legislation. In order to ensure that all land-related data can be treated as a corporate resource and shared between organizations, flexible and clearly defined data exchange standards will need to be introduced. Given the present rapid rate of change in technology, investment in hardware and software will have to be renewed every three to five years. The major investment, however, is in data and although they too must be kept up to date, they should not need to be renewed along with the hardware and software. Data Interoperability Today, there is an important amount of geographical information being produced in the EU. Many initiatives to bring the information near the citizens and institutions, and remove the access obstacles are taking part. One of the most important is the proposed initiative on INSPIRE (INfrastructure for SPatial InfoRmation in Europe), which wants to gradually overcome these obstacles. Those important obstacles to the use of such information, all linked to problems with the availability and usability of geographic information, can be summarised as follows (the list is not exhaustive): Difficulties of access to information (insufficient metadata at all levels); Different projections and scales, making existing information difficult to integrate; Observation date of the information is rarely available; Prohibitive cost of geographical data; 10

11 Lack of a standardised transfer format; Lack of standardisation in the codes used to represent the objects described; Varying data quality from one country to another within the same layer of geographical information; Lack of long-term solutions (instead: supply of snapshots, absence of information on changes), resulting in information that becomes quickly outdated and hence the need for duplication of data collection efforts; These obstacles lead to fragmentation, gaps in availability of geographical data and to problems of identifying, accessing or using data that is available. In this environment, no economies of scale can take place. These and other issues related to the access to and exploitation of geographic information and more in general public sector information were discussed in the Green Paper on public sector information in the Information Society, published by the Commission on 20 January 1999, COM(1998)585. The Commission intends to publish a follow-on Communication later this year (October 2001), indicating the actions that will be taken. INSPIRE diagnostic is aplicable to the cadastral information as well. Although Cadastre is a Natural Monopoly, the nature of the territorial information leads to decentralized forms of management, that can originate: The fragmentation in a integrity of the information. Different level of data quality, leading to different opportunities to access to the information. Cadastres face this challenge, to conciliate efective and decentralized forms of management, and preserve the integrity, consistency, and quality of his data bases. This will allow: The appearance of scale economies. The leveling of the public services inside the States. 11

12 Project Direction Participants INSPIRE Initiative INfrastructure for SPatial InfoRmation in Europe ESMI: European Spatial Metadata GINIE: Geographic Information Network in Europe EULIS: European Land Information Service La Clef: An Operational Model for Unlocking Public Sector GI through E- Commerce DG Environment; JRC; University of Valencia. EUROGI, JRC,OGC, Univ.Sheffield Kadaster, Federal Ministry of Justice of Austria, HMLR of England and Wales, Registers of Scotland, Lantmäteriet of Sweden, National Land Survey of Finlandia, Norsk Eiendomsinformation of Norway, Cadastre of Lithuania, Univ. of Lund GETIS: Geoprocessing networks in a European Territorial Interoperability Study MADAME: Methods for Access to Data and Metadata in Europe Europe.htm) /exeng.pdf OPEN GIS CONSORTIUM Links INSPIRE Reference Documents Memorandum of Understanding between Commisioners ESMI European Spatial Metadata GINIE Geographic Information Network in Europe EULIS European Land Information Service 12

13 9. The authorities in charge of the Cadastre in the different States will enhance the increasing use of the cadastral information to apply, within their states, those policies that rely on land information. Likewise they will work together so that territorial information is used in the application of European Union policies. Whenever it will be possible, the creation of new land databases will be avoid, if ever these databases could be furnished by the information already existent in the cadastres. The Cadastre is a multidisciplinary science. It deals simultaneously with the following thematic fields with greater or smaller intensity: THEMATIC FIELD Territorial IS and Digital Cartography Property Rights Reinforcement. Land Administration. Land Registry systems. Real Estate Valuation. Territorial Statistic. Public Information and its Diffusion. Information Society Sectorial policies: Infrastructures, Environment, Agriculture, Urbanism Data bases Standarization, Interoperability, Metadata PARTIAL ASPECT THAT APPROACHES Cadastre as a Land Information System. Cadastre as a juridical instrument. Cadastre as a taxation instrument. Cadastre as public information. Multifunctional Cadastre as IS providing service of the public administrations Cadastre as a Data base In this highly complex described environment, there are multiple institutions participating in the different fields with cadastral incidence. This could produce: 1. Dispersion respecting to the information that is generated. 2. Duplicity of efforts on identical or very similar projects with same or close purposes. 3. Posible lack of optimization of Public Funds destinated to the generation of territorial information. It is appropiate therefore, for the national organizations who manage the Cadastre in their own countries, or coordinate the different organizations from their scope, to lead a coordination process refering to: 1. Definition of Standards and Cataloguing of official Cartographies of Great Scales. 2. Creation, Maintenance and Diffusion of the property limits thematic layer to one scale that allows, identification, measuring and referencing of the parcels. This thematic layer should cover the whole territory. 13

14 3. Generation and diffusion of cartography of total covering of the territory, to support the sectorial layers of infrastructure, environment, agriculture, uses of land, statistic. 4. Advising to the European Organisms in aspects regarding to availability and quality of the existing information, with the purpose of avoiding duplicities in the cost. Connected to this we can find the principles of the INSPIRE Initiative: Principles of INSPIRE Data should be collected once and maintained at the level where this can be done most effectively. It should be possible to combine seamless spatial information from different sources across Europe and share it between many users and application. It should be possible for information collected at one level to be shared between all the different levels, detailed for detailed investigations, general for strategic purposes. Geographic information needed for good governance at all levels should be abundant under conditions that do not refrain its extensive use. It should be easy to discover which geographic information is available, fits the needs for a particular use and under which conditions it can be acquired and used. Geographic data should become easy to understand and interpret because it can be visualised within the appropriate context selected in a user-friendly way. The European Directive 3508/92 creates the IACS (Integrated Administration and Land Control System), and establishes that all member states should dispose: Computerized Data Base and unique identifier for every parcel. Management assistance applications. Integrated Control System. It is established as well that cadastral information, or other documents as aerial photographs, or satelite images. Precision required is 1/ To illustrate this, if there is a state that has parcel maps for taxation purposes in rural land, the cadastral institution has at least these data: -Holder -Surface -Ubication -Cultivation In such situation,it can be easily built a GIS capable to manage Community helps. The cost is very low as the data maintenanceis currently assumed by the Cadastre for his own purposes. 14

15 Reference document Directive 3508/92 Integrated Administration and Land Control System 10. The information recorded in the Cadastre, in each Member State, will be available for all the European citizens, companies as well as public and private institutions. The only limits to access this information will be imposed by laws and regulations in order to protect the individual privacy and the information aimed to taxation. The direct pricing for information that could be determined by the Member States will not discourage its access. Access to information right is widely recognized in all European laws: Maastricht Treaty. Annex declarations to the final Act... DECLARATION (nº 17) Related to the right to acces to information The Conference estimates that transparency in decision process reinforces the democratic character of institutions, and the trust of public in administration. The conference recommends the Commision, therefore, to present to the Council, not later than 1993, an inform about measures to improve public access to institutions information. Such access has to take account on confidentiality of personal data. This principle is recognized as well in all member countries legislation. The EU has the Directive 95/46/CE on the protection of individuals with regard to the processing of personal data and on the free movement of such data. A proposal for a coordinate strategy for public sector data can be found in the document: COM (1998) 585 GREEN PAPER ON PUBLIC SECTOR INFORMATION IN THE INFORMATION SOCIETY. This document is a starting point to discuss the following questions: Access to public sector data. 15

16 Prize fixation policies. Economic exploitation of these data as a wealth source Some interesting fragments are transcribed: III.3 Practical tools for facilitating access Citizens and businesses alike can be seen as the clients of the information services that are offered by the public sector. The concept of client implies that the needs of citizens and businesses are being taken into account when the services are conceived and that user-friendly search mechanisms are put in place. The data sets available in the public sector are numerous. A recent estimate of the number of public databases in the Netherlands alone came up with a figure of some To help the information clients in finding their way in this mass of data it may be necessary to establish meta-data and directories. III.4 Pricing issues Pricing as well as pricing models vary enormously in different Member States and in different public sector bodies of the same Member-State. As an example, figure 3 shows the wide range of prices Dun&Bradstreet, a business information provider, must pay when accessing companies registered data and financial statements throughout Europe. Pricing Models The 1994 French circular distinguishes between information collection and production costs (which are not charged for) and other costs, such as printing, updating, data retrieval and transmission (which can be charged for). Furthermore it distinguishes between types of information and types of use. The UK guidelines 1985 DTI guidelines favour a market approach: "Where an established market exists for Government-held tradable information provided by them already, Departments should charge a reasonable market price. In the case of tradable information which has not previously been exploited, contracts may initially be on the basis of charging only for costs incurred over and above those that would be incurred normally in handling the data or information for their own purpose". The 1989 European Commission Synergy Guidelines favour a distribution cost approach: "Pricing policies may vary depending on the nature of the information; A price should be established which reflects the costs of preparing and passing it to the private sector, but which does not necessarily include the full cost of routine administration. The price may be reduced if provision of the resulting information service is deemed to be necessary in the public interest". 16

17 The US law allows charging for search, duplication and review costs but not for the value added by the public sector to the raw data. The US public sector should see the adding of value only as a tool to increase efficiency, not as a means for profit making. In the long run, the current trend to make public sector information increasingly available free of charge on the Internet may have an effect of prices and pricing models. Studies and discussions have shown that the dual purpose of a public sector information policy - access and exploitation - calls for a pricing policy that should take into account a number of interests: affordable access for all exploitation potential fair competition (treated in the next paragraph) Pricing conditions are in the first place important in the discussion on access. Public information is produced at the expense of taxpayers. The question may therefore be raised whether public organisations have a right to charge for the provision of information. It may be argued, however, that it is usually a small section of the public who wish to use a particular public sector information product and that they should not be subsidised by the rest of the population. In fact, people are willing in certain circumstances to pay for the (information) services offered. Figure 4 clearly shows this. But pricing should be such that it does not preclude the access for all. In this respect mention should be made of the French initiative to identify categories of public sector information considered to be "essential" in view of the exercise of democratic rights by citizens. In principle, such public sector information is provided for free. At the exploitation side, it is important that efforts made by the public sector to render information accessible for commercial exploitation are recognised and rewarded. At the same time, if the private sector is to develop competitive products from public sector information, the raw materials must be available to them at a reasonable price. Pricing is therefore a crucial issue for the exploitation of public sector information by the content industries. It largely determines whether they will find an interest in investing in value added products and services based on public sector information. American companies benefit from the fact that they can obtain US public sector information for free. An American software firm is about to release a business mapping software product allowing users to find and illustrate points on the map, integrate maps in their documents and identify the trends of their business on the map. The objective is to make it easy for business users in organizations of any size to use maps to make better-informed business decisions. Over 15 million addressed street-level segments are included for all US and worldwide country-level boundaries. The estimated retail price of the product is $109. As an element of comparison, a German mapinfo company is offering geodata for one German state unit only for a total of DM + VAT 16%. 17

18 A UK based environmental pressure group has complained after the Ordnance Survey, Britain s national mapping agency, tried to charge the organisation more than for digital mapping base-data of the country. III.7 Privacy issues Part of the commercially interesting information held by the public sector is of a personal nature, i.e. relates to or allows the identification of individual persons. This is for example the case with respect to population, company, vehicle or credit registers. It also applies to information on medical, employment or social welfare data. Access to such information may be of use to private industry for marketing, research or other purposes. In such cases the right to information needs to be balanced with the individual s right to privacy. All national access laws show awareness of the need for such a balance. On 24 October 1995 Directive 95/46/EC was adopted on the protection of individuals with regard to the processing of personal data and on the free movement of such data. This Directive establishes binding rules for both the public and the private sectors and achieves the necessary balance between the principle of access to public sector information and the protection of personal data. It must be fully observed in cases of personal data held by the public sector. It is up to the public bodies responsible to apply the agreed balances between the need for open access for commercial or other purposes on one hand and the right to privacy on the other, taking into account the principles established by the EC Directive, in particular the principle of purpose limitation. In addition, national supervisory authorities have an important role and courts are expected to decide in cases of dispute. In the specific case of statistical data, the well-established statistical confidentiality principle reinforces the data protection level. Statistical confidentiality prevents not only access to any other private users but also the transmission of confidential data to administrative bodies other than statistical offices. The emergence of the Information society could pose new risks for the privacy of the individual if public registers become accessible in electronic format (in particular on-line and on the Internet) and in large quantities. Then eeurope initiative was launched. Brussels, COM (2001) 607 final COMMUNICATION FROM THE COMMISSION TO THE COUNCIL, THE EUROPEAN PARLIAMENT, THE ECONOMIC AND SOCIAL COMMITTEE AND THE COMMITTEE OF THE REGIONS. eeurope 2002: CREATING A EU FRAMEWORK FOR THE EXPLOITATION OF PUBLIC SECTOR INFORMATION 4.2. Improving the framework conditions at European level Two fundamental issues should be distinguished here: the access to information and its commercial exploitation Access to public sector information The importance of the issue of access to public sector information for citizens and business was stressed in the replies to the Green Paper. At Community level, Council 18

19 Directive 90/313/EEC on the freedom of access to information on the environment already lays down the basic terms and conditions on which environmental information should be accessible. However, with the exception of the environmental area arrangements for access are first and foremost a national, regional and local responsibility. Therefore no harmonisation on the specific aspects of access to public sector information is envisaged. To promote improved electronic access to public sector information throughout Europe, the eeurope Action Plan has set targets, e.g. related to essential public data online including legal, administrative cultural, environmental and traffic information. To this end, the open method of co-ordination, established by the Lisbon European Council, will be used. The exchange of information and best practices will play an important role in this context (see under 4.1.2) Exploitation of public sector information The absence of clear and consistent conditions for the commercial use of public sector information constitutes a major barrier to realising the economic potential of public data in the new electronic environment and to the development of a real European information market. An improved framework for the exploitation of public sector information throughout Europe would facilitate the creation of information products that cover the whole or large part of Europe, rather than the single countries What issues should be addressed? Without wanting to prejudge the final choice of instrument by the Commission, nor its final shape, this section will consider the type of issues that could be addressed by a legal instrument. The Commission proposes the following basic orientations on scope, on the leading principle, on fair trading and on a number of practical issues. Scope No changes in the existing access regimes The measures facilitating the re-use of public sector information throughout Europe would build upon the existing access regimes, without proposing changes to these regimes. Furthermore the framework for exploitation should not have a negative effect on the accessibility of the information at its original public source. Exceptions The measures would not apply to commercially sensitive information (e.g. business secrets ) held by bodies that are owned or controlled by public authorities and that have a commercial or industrial character. Also public broadcasters, in as far as their archives and creative activities are concerned, would be excluded from the scope of any measure in view of the specific characteristics of this sector. Compliance with data-protection rules Any measure proposed should ensure full respect of the existing data-protection rules. If for data-protection reasons, the information is not generally accessible it will not be 19

20 exploitable. This includes the case where specific conditions for consultation of personal data held by public sector bodies exist (e.g. the need to prove a legitimate interest for dataprotection reasons, access limited to certain parts of the information etc.) Intellectual property rights: Any initiative which deals with the intellectual property rights of the public sector has to take into account both the Community s own acquis in the field of copyright and related rights which provide the legal framework in which those rights subsist and are administered and also the Community s international obligations under the relevant Conventions. In particular the rights harmonised by Directive 2001/29 on copyrights and related rights in the Information Society and Directive 96/9 on the legal protection of databases are of particular relevance. The intellectual property rights third parties may have on information held by the public sector must be carefully considered when establishing rules for the re-use of public sector information. In many instances information products and services may have been developed by the public sector in conjunction with private sector partners and the rights of third parties are not affected by what is proposed. Definitions The following working definition of information will be the starting point for the discussions. Information: any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording). The definition that figures in the directives relating to public procurement could be a useful starting point for the definition of Public sector bodies The leading principle A general right to re-use public sector information: whenever public sector information is generally accessible, commercial re-use should be possible. Fair trading Prohibition of exclusive arrangements Exclusive arrangements for the exploitation of public sector information could be limited or banned in future in order to stimulate the openness of the European market, where the arrangements unreasonably restrict commercial re-use of information. Transitional arrangements would be needed to bring agreements already in place into line with the measure after a specified period. Principles for pricing The following principles for pricing should apply: any compensation requested for the reuse of public sector information should be adequate. prices for re-use of public sector information should be transparent. A right to re-use public sector information would not therefore mean that the situation in the US would be imposed, where there are practically no costs involved for companies that want to re-use the information. 20

21 Practicalities -The time allowed for replying to requests for re-use should be reasonable and could be brought in line with the time that applies for accessing documents. -Firms and individuals should be allowed to ask for the information in any pre-existing format (e.g. a specific electronic format). This should not impose on the administration any obligation to create or adapt documents. - There should be a generalised availability of online standard licences. - Also catalogues of data resources should become available Towards an instrument for the exploitation of public sector information At present, the Commission is considering the right instrument to ensure that the same basic conditions apply to all players in the European information market, that more transparency is achieved on the conditions for re-use and that distortions are limited to a minimum. A directive would achieve a minimum of legal certainty for the market players, while leaving Member States free to choose the precise way in which its provisions would apply adapted to local circumstances. Such a directive was strongly advocated by industry in its replies to the Green Paper on Public Sector Information in the Information Society. Alternatively a recommendation to the Member States14 and/or the reinforcement of the administrative co-operation in this area could be considered. However, there are several reasons why the Commission is exploring the need for and the modalities of a directive on the exploitation of public sector information and why coordination between and/or a recommendation to the Member States may not suffice to redress the situation, also in the light of the economic importance of the issue at stake. A directive would provide a clear answer to the internationalisation of information needs and to the pan-european nature of several of the information products and services. If they are not complete if there is just one country not covered they lose much of their value and firms may refrain from investing in them. Therefore it is important that all countries have the same pace in establishing a minimum level of conditions in common. While the issue of exploitation of public sector information is under consideration in many of the Member States, a situation in which different Member States adopt individual solutions is not desirable. It will not offer the information industry the conditions needed to develop new, innovative, pan European products. It is furthermore urgent to have the right framework conditions in place for the next generation information products, that will play an essential role in the further development of the information society. The absence of action in this area may lead to the unpleasant discovery in a few years that there are still considerable barriers to the pan-european exploitation of public sector information and that the gap with the US has increased. In addition, the experience with the 1989 Guidelines15 issued by the Commission services on the exploitation of public sector information suggests that a nonlegislative approach in this area will not lead to the necessary results. In practice these guidelines have had little impact. 21

22 The existing legal Community instruments (competition rules, nondiscrimination rules, rules on the free movement of services) may be used in some very specific cases where the re-use of public sector information by the private sector is at stake. They offer, however, a relatively limited remedy and would not apply in many other situations. Also the testing of the boundaries of the existing legal remedies through a series of court cases will take a long time and will perpetuate the present situation of legal uncertainty. At the same time the judicial decisions would not resolve the underlying problem of the divergent rules and practices that exist in the different Member States. Finally it should be kept in mind that the proposal for a directive would aim at a minimum harmonisation, leaving a considerable margin of manoeuvre for the governments but at the same time easing or overcoming the main barriers for industry Improving the practice of the EU institutions The involvement and confidence of the citizens in the European Union can be enhanced by granting an extensive right to access administrative documents held by the Community Institutions. To this end, the European Parliament and Council have adopted a regulation16, implementing article 255 EC. At the same time the Commission is working on a programme for improving access for the blind. However, public access to documents held by EU institutions does not mean unfettered access. The principles of personal data protection continue to apply to personal data processed by EU institutions and the fact that they may be contained in a community administrative document does not deprive the data subject of adequate protection of his or her right to privacy. Accordingly, article 286 EC has been more narrowly specified by Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.questions of openness and transparency are also a central element in the Commission White Paper on Governance that was published in July In parallel, the policies of the EU Institutions concerning the exploitation of EU information need to be updated and clarified. This update will protect the interests of all parties involved, and will not place unnecessary restrictions on private initiatives in the information market leading to new economic activity and job-creation. It will include the policies in relation to geographic information on the European territory collected and collated by the Institutions for use in monitoring EU policies. More in general, in the framework of the ecommission initiative which was presented in March 2000 in the context of the White Paper on Internal Reform the Commission will improve its own use of the tools of the Information Society in the light of the most advanced solutions adopted throughout Europe.20 The eeurope action-plan, in its government online priority action has set the target that all basic transactions with the European Commission (e.g. funding, research contracts, recruitment, procurement) must become available online. A regulatory framework at European level Main Actions - Explore the need and modalities for a proposal for a directive on the exploitation of public sector information. - Update the policies of the EU institutions on the exploitation of EU information A process involving all relevant players. 22