Julián Valero Torrijos y María Magnolia Pardo López
Publicación en Masaryk University Journal of Law and Technology, vol. 6:3, 2012, pp. 455-470.
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Abstract:
Directive
2003/98/EC of the European Parliament and the Council of 17 November
2003 (PSI re-use Directive) has not achieved a minimum harmonisation of
national legislations in this area given the lack of strict standard
policy. All things considered, it imposes few demands on the side of
Member States (MS).
Nevertheless, it has been pointed out the
convenience of imposing the creation of new institutions — independent
authorities — at the national level in order to supply the lack of clear
legal provisions, control contraventions of the legal framework
regarding access/re-use and provide with rapid and inexpensive
mechanisms of resolution of disputes.
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This
option may seem paradoxical in a certain way since it intends an
institutional harmonization solution before achieving legal
harmonization. Legislation on PSI re-use is somewhat unsatisfactory, so
we could consider that the problem we face is not the lack of
institutional support, but the inadequacy and vagueness of the legal
standard to apply in many cases. This paper suggests that, in favour of
legal certainty, transparency and better functioning of the market, the
PSI re-use Directive should force MS to specify which types/categories
of PSI are reusable and which ones are not, so that legal operators may
know what to expect.
To address some criticisms of the current
situation and solve problems mentioned, the PSI re-use Directive may
impose on MS the requirement that a) national regulations concrete the
organ/body responsible in each case to resolve requests on PSI re-use
and b) establish easier and faster administrative procedures and
proceedings before the Courts.
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This
paper was drafted within the WG6 – Institutional Backing of the European
Thematic Network LAPSI (Legal Aspects of Public Sector Information
website).
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