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@@ -38,9 +38,7 @@ In order to elucidate the relevant requirements, the authors provide excellent o Crucially, the authors have managed to draw on all these sources to indicate clearly what should be done in practical, technical terms by the officials managing the information and IT systems relating to the work of the European Parliament to truly and fully achieve the legal requirement of "utmost transparency". This report will become a major point of reference for the debates on those steps. It is to be greatly commended for having taken the issue seriously (rather than just rely on all-too-easy slogans or political rallying cries). It cannot be dismissed by those with the power to take action. Rather, it should lead to Parliament clearly instructing its civil servants to take the steps needed to achieve the "utmost transparency" required of the institution. The recommendations should be fully implemented: that will enhance democracy, accountability and public participation, and trust in the Union at a time of doubt and insecurity. -'' Professor Douwe Korff'' - -''London 15 November 2014'' +'' Professor Douwe Korff, London 15 November 2014'' = Scope and method of analysis= @@ -82,9 +80,9 @@ According to the case law of the Court, the purpose of the Community institution Therefore, internal rules cannot be regarded as measures conferring on European citizens a substantive right of access to documents, to information, or to data held by the EU institutions. They are not intended to vest in European citizens a formal "right to know" what is going on within the European institutions, which is a prerequisite in a participatory democracy, where decisions are taken "as closely as possible to the citizen". In the absence of general rules on the right of public access to information or to data held by the EU institutions, European citizens' "right to know" and to participate "as closely as possible" in the decision-making process must therefore be found elsewhere. -As a preliminary conclusion, Rule 115 does not in itself confer any rights on European citizens. Nevertheless, as compliance with internal Rules of Procedure may constitute an essential procedural requirement, and may in some circumstances have legal effects vis-à-vis third parties, their breach can give rise to an action for annulment before the EU Courts. Indeed, procedural rules laid down in Rule 115 constitutes an essential procedural requirement within the meaning of the second paragraph of Article 263 TFEU and its infringement leads to the nullity of the measure thereby vitiated. +As a preliminary conclusion, Rule 115 does not in itself confer any rights on European citizens. Nevertheless, as compliance with internal Rules of Procedure may constitute an essential procedural requirement, and may in some circumstances have legal effects vis-à-vis third parties, their breach can give rise to an action for annulment before the EU Courts. Indeed, procedural rules laid down in Rule 115 constitutes an essential procedural requirement within the meaning of the second paragraph of Article 263 of the Treaty on the Functioning of the European Union (TFEU) and its infringement leads to the nullity of the measure thereby vitiated. -In the light of the Court's judgment in European Parliament v. Council, that rule is an expression of the democratic principles on which the European Union is founded. In particular, the Court has already stated that the Parliament's involvement in the decision-making process is the reflection, at the EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly.<ref>Judgment European Parliament v. Council EU:C:2014:2025, paragraph 80-81</ref> Not only has Parliament imposed upon itself that it shall ensure that its activities are conducted with the utmost transparency, but its actions shall also conform with the Principle of Openness enshrined in the Treaties and in the Charter, and the Right of Access to Information in Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). +In the light of the Court's judgment in European Parliament v. Council, that rule is an expression of the democratic principles on which the European Union is founded. In particular, the Court has already stated that the Parliament's involvement in the decision-making process is the reflection, at the EU level, of the fundamental democratic principle that the people should participate in the exercise of power through the intermediary of a representative assembly.<ref>Judgment European Parliament v. Council EU:C:2014:2025, paragraph 80-81</ref> Not only has Parliament imposed upon itself that it shall ensure that its activities are conducted with the utmost transparency, but its actions shall also conform with the Principle of Openness enshrined in the Treaties and in the Charter, and the Right of Access to Information in Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. == The Principle of Openness and the Right of Access to Information: A Basis for Imposing Free Software and Open Standards ? == @@ -92,7 +90,7 @@ The first real step towards allowing the public a right of access to documents h === The Treaties === -Article 1(2) and Article 10(3) of the Treaty establishing the European Union (TEU) states that in the European Union decisions are to be taken as "openly as possible" and ''as closely as possible'' to the citizen. +Article 1(2) and Article 10(3) of the Treaty establishing the European Union (TEU) states that in the European Union decisions are to be taken as "openly as possible" and "as closely as possible" to the citizen. In this respect, Article 15(1) TFEU states that in order to promote good governance and ensure the participation of civil society, the Union's institutions, bodies, offices and agencies are to conduct their work as openly as possible. According to the first subparagraph of Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing in or having its registered office in a Member State, is to have a right of access to documents of the Union's institutions, bodies, offices, and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with that paragraph. Moreover, according to the second subparagraph of Article 15(3), the general principles and limits on grounds of public or private interest governing this right of access to documents are to be determined by the European Parliament and the Council of the European Union, by means of regulations, acting in accordance with the ordinary legislative procedure. In accordance with the third subparagraph of Article 15(3) TFEU, each institution, body, office or agency is to ensure that its proceedings are transparent and is to elaborate in its own Rules of Procedure specific provisions regarding access to its documents, in accordance with the regulations referred to in the second subparagraph of Article 15(3) TFEU. @@ -116,17 +114,17 @@ The existence of a "principle of openness" is confirmed by Art. 15 of the Treaty === Charter of Fundamental Rights of the European Union === -Similarly, Article 42 of the Charter of Fundamental Rights of the European Union proclaimed in Nice on 7 December 2000 ('Charter of Fundamental Rights') also acknowledges this right: +Similarly, Article 42 of the Charter of Fundamental Rights of the European Union (the Charter) proclaimed in Nice on 7 December 2000 also acknowledges this right: <blockquote>Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.</blockquote> -Article 42 of the Charter of Fundamental Rights of the European Union ('the Charter'), Article 15(3) TFEU and Article 2(1) of Regulation No 1049/2001 thereby establish a right of access to documents of the institutions. In the context of the European Parliament documents, it should be noted that Article 4 of the Statute for Members of the European Parliament<ref>OJ 2005 L 262, p. 1</ref> provides that documents and electronic records which a Member has received, drafted or sent are not to be treated as Parliament documents unless they have been tabled in accordance with the Rules of Procedure. As Advocate general Kokkot has noted, the documents relating to a legislative procedure which are in the possession of a rapporteur must in principle be regarded as being in the possession of the Parliament. It will at some point in time be necessary to decide whether Article 15 TFEU and Article 42 of the Charter of Fundamental Rights of the European Union allow such documents to be excluded from the right of access in the future.<ref>Opinion Afton Chemical EU:C:2010:258</ref> +Article 42 of the Charter, Article 15(3) TFEU and Article 2(1) of Regulation No 1049/2001 thereby establish a right of access to documents of the institutions. In the context of the European Parliament documents, it should be noted that Article 4 of the Statute for Members of the European Parliament<ref>OJ 2005 L 262, p. 1</ref> provides that documents and electronic records which a Member has received, drafted or sent are not to be treated as Parliament documents unless they have been tabled in accordance with the Rules of Procedure. As Advocate general Kokkot has noted, the documents relating to a legislative procedure which are in the possession of a rapporteur must in principle be regarded as being in the possession of the Parliament. It will at some point in time be necessary to decide whether Article 15 TFEU and Article 42 of the Charter of Fundamental Rights of the European Union allow such documents to be excluded from the right of access in the future.<ref>Opinion Afton Chemical EU:C:2010:258</ref> -Moreover, Art. 10 TEU regarding the principle of democracy (especially Article 10(3), echoes the second paragraph of Article 1) and Article 15 TFEU, dealing with good governance, openness, transparency and access to documents. +Moreover, Article 10 TEU regarding the principle of democracy (especially Article 10(3), echoes the second paragraph of Article 1 and Article 15 TFEU, dealing with good governance, openness, transparency and access to documents. === Article 10 in the European Convention of Human Rights === -The development of the principle of openness in EU law has been accompanied by a parallel development of the case law of the European Court of Human Rights. In Guerra and Others v. Italy, the Strasbourg Court held that freedom to receive information under Art. 10 of the ECHR merely prohibited a State from restricting a person from receiving information that others wished or might be willing to impart to him. It states that freedom could not be construed as imposing on a State, in the circumstances of that case, positive obligations to collect and disseminate information of its own motion <ref>See Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998-I).</ref> Similarly, Társaság a Szabadságjogokért concerned a request for access to information by a non-governmental organisation for the purposes of contributing to public debate. Here, the Court noted that it had recently advanced towards a broader interpretation of the notion of the "freedom to receive information" and thereby towards the recognition of a right of access to information.<ref>Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 44, 14 April 2009.</ref> +The development of the principle of openness in EU law has been accompanied by a parallel development of the case law of the European Court of Human Rights. In Guerra and Others v. Italy, the Strasbourg Court held that freedom to receive information under Art. 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms merely prohibited a State from restricting a person from receiving information that others wished or might be willing to impart to him. It states that freedom could not be construed as imposing on a State, in the circumstances of that case, positive obligations to collect and disseminate information of its own motion <ref>See Guerra and Others v. Italy, 19 February 1998, § 53, Reports of Judgments and Decisions 1998-I).</ref> Similarly, Társaság a Szabadságjogokért concerned a request for access to information by a non-governmental organisation for the purposes of contributing to public debate. Here, the Court noted that it had recently advanced towards a broader interpretation of the notion of the "freedom to receive information" and thereby towards the recognition of a right of access to information.<ref>Társaság a Szabadságjogokért v. Hungary, no. 37374/05, § 44, 14 April 2009.</ref> In a recent judgment of 25 June 2013, for the case of Youth Initiative for Human Rights v Serbia,<ref>Application no. 48135/06, available at http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-120955</ref>, the Court unanimously recalled, in its reasoning on admissibility, that the notion of "freedom to receive information" embraces a "right of access to information". The judgment has, in our view correctly, been interpreted as having "established implicitly the right of access", in that the notion of "freedom to receive information" embraces a right of access to information.<ref>European Parliament Policy Department C on request by the Committee on Civil Liberties, Justice and Home Affairs (LIBE): Openness, transparency and access to documents and information in the European Union, available at http://www.europarl.europa.eu/RegData/etudes/note/join/2013/493035/IPOL-LIBE_NT%282013%29493035_EN.pdf ; see also Dirk Voorhoof, Article 10 of the Convention includes the right of access to data held by an intelligence agency, accessible via http://strasbourgobservers.com/2013/07/08/article-10-of-the-convention-includes-the-right-of-access-to-data-held-by-intelligence-agency/</ref> @@ -146,7 +144,7 @@ The principle of openness and the right of access to information are directed -- Ever since the Treaty of Amsterdam the concept of "the legislative" has had a place in the language of the EU Treaties. Under the second subparagraph of Article 207(3) EC the Council was already required to define "the cases in which it is to be regarded as acting in its legislative capacity" to allow the right of access to documents under Article 255(1) EC to be exercised. -In the realm of secondary legislation, Recital 6 in the Preamble to Regulation No 1049/2001 states that "[w]ider access should be granted to documents in cases where the institutions are acting in their legislative capacity." The Treaty of Amsterdam enshrined both the right of access to documents of the institutions, on the one hand, and referred to the special consideration to be given to the 'legislative capacity' of the Council, on the other. It has been argued that this indicated that the appropriate context for exercising the right of access was where the Council was acting in a "legislative capacity", thus acknowledging the close relationship that, in principle, exists between legislative procedures and the principles of openness and transparency <ref>Opinion of Advocate General Cruz Villalón in Case C-280/11 P Council v Access Info Europe, EU:C:2013:325</ref>. +In the realm of secondary legislation, Recital 6 in the Preamble to Regulation No 1049/2001 states that "[w]ider access should be granted to documents in cases where the institutions are acting in their legislative capacity." The Treaty of Amsterdam enshrined both the right of access to documents of the institutions, on the one hand, and referred to the special consideration to be given to the "legislative capacity" of the Council, on the other. It has been argued that this indicated that the appropriate context for exercising the right of access was where the Council was acting in a "legislative capacity", thus acknowledging the close relationship that, in principle, exists between legislative procedures and the principles of openness and transparency <ref>Opinion of Advocate General Cruz Villalón in Case C-280/11 P Council v Access Info Europe, EU:C:2013:325</ref>. On a comparative note, and despite the differences that may exist between national legislation and EU "legislation", or between Member State legislatures and the EU "legislature", the "legislative procedure" by which the Council and the European Parliament are bound, is conceptually very close to the national "legislative procedure", speaking from the point of view of its underlying purpose and thus the principles on which it must be based. In the end, they have in common the need to satisfy the imperative requirements of democratic legitimacy. @@ -178,7 +176,7 @@ The implications of the switch to an informal mode of legislating for representa === The Need for Lawmakers to Deliberate in Private === -The European Union, the Member States and 19 other States are parties to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Convention'), which entered into force on 30 October 2001<ref>Aarhus Convention, available at http://www.unece.org/env/pp/treatytext.html</ref>. The Convention is based on three 'pillars' -- access to information, public participation, and access to justice. Its preamble includes the following recitals: +The European Union, the Member States and 19 other States are parties to the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, which entered into force on 30 October 2001<ref>Aarhus Convention, available at http://www.unece.org/env/pp/treatytext.html</ref>. The Aarhus Convention is based on three ''"pillars"'' -- access to information, public participation, and access to justice. Its preamble includes the following recitals: <blockquote>Recognising that, in the field of the environment, improved access to information and public participation in decision-making enhance the quality and the implementation of decisions, contribute to public awareness of environmental issues, give the public the opportunity to express its concerns and enable public authorities to take due account of such concerns, @@ -186,15 +184,15 @@ Aiming thereby to further the accountability of and transparency in decision-mak Recognising the desirability of transparency in all branches of government and inviting legislative bodies to implement the principles of this Convention in their proceedings,</blockquote> -Mirroring Article 2 of the Convention, the second sentence of Article 2(2) in Directive 2003/4/EC on public access to environmental information<ref>Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) ('the Directive').</ref>allows Member States to exclude from the scope of the Directive bodies otherwise falling within the definition of "Public authority", "when acting in a judicial or legislative capacity". +Mirroring Article 2 of the Aarhus Convention, the second sentence of Article 2(2) in Directive 2003/4/EC on public access to environmental information<ref>Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26) ('the Directive').</ref>allows Member States to exclude from the scope of the Directive bodies otherwise falling within the definition of "public authority", "when acting in a judicial or legislative capacity". -The Convention was approved on behalf of the European Community by Council Decision 2005/370/EC<ref>Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1)</ref>, the annex to which contains a declaration by the European Community which reads, in so far as relevant, as follows: +The Aarhus Convention was approved on behalf of the European Community by Council Decision 2005/370/EC<ref>Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1)</ref>, the annex to which contains a declaration by the European Community which reads, in so far as relevant, as follows: <blockquote>In relation to Article 9 of the Aarhus Convention the European Community invites Parties to the Convention to take note of Article 2(2) and Article 6 of [the Directive]. These provisions give Member States of the European Community the possibility, in exceptional cases and under strictly specified conditions, to exclude certain institutions and bodies from the rules on review procedures in relation to decisions on requests for information. Therefore the ratification by the European Community of the Aarhus Convention encompasses any reservation by a Member State of the European Community to the extent that such a reservation is compatible with Article 2(2) and Article 6 of [the Directive].</blockquote> -In ratifying the Convention on 20 May 2005, Sweden lodged a reservation which, in so far as is relevant, reads as follows: +In ratifying the Aarhus Convention on 20 May 2005, Sweden lodged a reservation which, in so far as is relevant, reads as follows: <blockquote>Sweden lodges a reservation in relation to Article 9.1 with regard to access to a review procedure before a court of law of decisions taken by the Parliament, the Government and Ministers on issues involving the release of official documents.<ref>Sweden's reservation is available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-13&chapter=27&lang=en#EndDec</ref></blockquote> @@ -250,14 +248,14 @@ It is also clear that Rule 115 section 1 does not just refer to the fact that th Therefore it is safe to conclude that simply the publicity of the works is not sufficient. On the other hand, it is evident that those parts that need to be non-public shall be subtracted from the principle of openness, but this shall be an exception to the rule. -It should be noted that one of the open issues during the negotiations in the Council on the reform of regulation 1049/2001, is whether some reforms are needed to comply with the Treaty of Lisbon, which obliges the EU institutions to take decisions "as openly and as closely as possible to the citizen" and which requires a transparent legislative process. As has been The European Charter of Fundamental Rights also now recognises the right of access to EU documents "whatever their medium", as a fundamental human right. At the very least the Treaties extend the scope of the right of access to all EU bodies and it is not clear whether this requires a legislative amendment to do away with current discrepancies such as different time frames for different EU bodies. +It should be noted that one of the open issues during the negotiations in the Council on the reform of regulation 1049/2001, is whether some reforms are needed to comply with the Treaty of Lisbon, which obliges the EU institutions to take decisions "as openly and as closely as possible to the citizen" and which requires a transparent legislative process. As the Charter also now recognises the right of access to EU documents "whatever their medium", as a fundamental human right. At the very least the Treaties extend the scope of the right of access to all EU bodies and it is not clear whether this requires a legislative amendment to do away with current discrepancies such as different time frames for different EU bodies. == Neighbouring concepts == === Re-use of Public Sector Information === The Directive 2003/98/EC on the re-use of public sector information<ref>Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-utilisation of public sector information (OJ 2003 L 345, p. 90)</ref> as amended by Directive 2013/37/EU<ref>Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013 amending Directive 2003/98/EC on the re-use of public sector information (OJ L 175, 27.6.2013 p. 1-8)</ref>, also known as the "PSI Directive" <ref>In the remainder of this section, by using "PSI Directive" we make reference to the amended directive.</ref>, establishes a minimum set of rules governing the re-use and the practical means of facilitating re-use of existing documents held by public sector bodies of the Member States. Article 2(4) of the PSI Directive defines re-use as "the use by persons or legal entities of documents held by public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced. Exchange of documents between public sector bodies purely in pursuit of their public tasks does not constitute re-use". -Article 3 of the PSI Directive entitled 'General principle' states that Member States shall ensure that, where the re-use of documents held by public sector bodies is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in in the Directive. +Article 3 of the PSI Directive entitled "General principle" states that Member States shall ensure that, where the re-use of documents held by public sector bodies is allowed, these documents shall be re-usable for commercial or non-commercial purposes in accordance with the conditions set out in in the Directive. Recital 9 clarifies that the definition of "document" is not intended to cover computer programmes. To facilitate re-use, public sector bodies should make their own documents available in a format which, as far as possible and appropriate, is not dependent on the use of specific software. Where possible and appropriate, public sector bodies should take into account the possibilities for the re-use of documents by and for people with disabilities. @@ -266,7 +264,7 @@ In recital 16, the PSI Directive establishes a link between re-use of public sec The PSI Directive does not contain an obligation to allow re-use of documents, and the decision whether or not to authorise re-use remains with the Member States or the public sector body concerned. It applies to documents that are made accessible for re-use when public sector bodies license, sell, disseminate, exchange or give out information. To avoid cross-subsidies, re-use includes further use of documents within the organisation itself for activities falling outside the scope of its public tasks. Activities falling outside the public task will typically include supply of documents that are produced and charged for exclusively on a commercial basis and in competition with others in the market. -In Recital 9, the PSI Directive purports to build on the existing access regimes in the Member States and does not change the national rules for access to documents. It 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. At Community level, Articles 41 (right to good administration) and 42 of the Charter of Fundamental Rights of the European Union recognise the right of any citizen of the Union and any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for re-use any documents held by them. Public sector bodies should promote and encourage re-use of documents, including official texts of a legislative and administrative nature in those cases where the public sector body has the right to authorise their re-use. +In Recital 9, the PSI Directive purports to build on the existing access regimes in the Member States and does not change the national rules for access to documents. It 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. At Community level, Articles 41 (right to good administration) and 42 of the Charter recognise the right of any citizen of the Union and any natural or legal person residing or having its registered office in a Member State to have access to European Parliament, Council and Commission documents. Public sector bodies should be encouraged to make available for re-use any documents held by them. Public sector bodies should promote and encourage re-use of documents, including official texts of a legislative and administrative nature in those cases where the public sector body has the right to authorise their re-use. An addition to Article 2 of the PSI Directive, introduced by Directive 2013/37/EU <ref>See note above</ref>, provides a number of useful definitions for the purpose of this study, since the European legislator has made an attempt to define open format and open standards as follows: @@ -331,7 +329,7 @@ Nevertheless, in creating a private market for Public sector information can hav On 18 March 2010, the Swedish Government presented its Bill (2009/10:175) on Public Administration for Democracy, Participation and Growth. One proposal contained in the Bill was for a law on re-use of documents emanating from Swedish public administration. On 3 June 2010, the Act (2010:566) on the re-use of public administration documents entered into force. The Swedish Agency for Public Management has therefore been assigned to survey the extent to which Swedish central and local government agencies (public sector bodies) have granted exclusive rights or arrangements of the kind referred to in Article 11 of the PSI Directive. -The survey shows that five central public sector bodies state that they have granted exclusive rights for one or more companies to re-use the respective bodies' documents. The questionnaire and interviews implemented by the Agency for Public Management show that several changes have taken place over the past year in terms of phasing out exclusive rights, if any. The survey shows, moreover, that there are unclear points regarding how the notion of 'exclusive rights' (or 'arrangements') should be defined. Based on the responses to the Agency's questionnaire survey, we find wide-ranging perceptions of differences between licensing agreements, on the one hand, and exclusive rights on the other. According to the Agency, there is substantial uncertainty regarding how the term 'exclusive right' should be interpreted. The Swedish Agency for Public Management therefore draws the conclusion that it is imperative to define the terms 'licensing agreement' and 'exclusive right', and also to assist both central and local public sector bodies in their work of developing non-discriminatory licensing agreements.<ref>Statskontoret, A survey of exclusive rights or arrangements (2010:21), available at http://www.statskontoret.se/in-english/publications/2010/a-survey-of-exclusive-rights-or-arrangements/.</ref> +The survey shows that five central public sector bodies state that they have granted exclusive rights for one or more companies to re-use the respective bodies' documents. The questionnaire and interviews implemented by the Agency for Public Management show that several changes have taken place over the past year in terms of phasing out exclusive rights, if any. The survey shows, moreover, that there are unclear points regarding how the notion of "exclusive rights" (or "arrangements") should be defined. Based on the responses to the Agency's questionnaire survey, we find wide-ranging perceptions of differences between licensing agreements, on the one hand, and exclusive rights on the other. According to the Agency, there is substantial uncertainty regarding how the term "exclusive right" should be interpreted. The Swedish Agency for Public Management therefore draws the conclusion that it is imperative to define the terms "licensing agreement" and "exclusive right", and also to assist both central and local public sector bodies in their work of developing non-discriminatory licensing agreements.<ref>Statskontoret, A survey of exclusive rights or arrangements (2010:21), available at http://www.statskontoret.se/in-english/publications/2010/a-survey-of-exclusive-rights-or-arrangements/.</ref> It should be noted that in March 2012, the Swedish Competition Authority closed an investigation with regard to a possible abuse of a dominant position by the Swedish Patent and Registration Office (SPRO) regarding its Trademark register. The Swedish Patent and Registration Office (SPRO) started to offer from 2010 free access to the Trademark register to the downstream end-user market. Customers on the upstream wholesale market were offered more detailed data in different formats (so-called ''"register lifted data"'') for a one-time fee and then a yearly fee. Before 2010, SPRO had offered access to the database to end-users for a fee. The SPRO motivated the decision to eliminate the fee with that free access was within the public task assigned to it by the government. The complaining (incumbent) re-user alleged that it was likely it will be squeezed out of the market by SPRO offering a competing product for free.<ref>Björn Lundqvist and Ylva Forsberg (Stockholm University), Marc de Vries (Citadel Consulting) and Mariateresa Maggiolino (Bocconi), LAPSI 2.0 -- competition law issues position paper, available at http://www.lapsi-project.eu/sites/lapsi-project.eu/files/LAPSIcompetitionartikelDraftII-1.pdf; Elisabeth Eklund and Oscar Jansson, Lower fees for re-use of public sector information -- the PSI Directive and cases from the Swedish Competition Authority, available at http://www.worldservicesgroup.com/publications.asp?action=article&artid=4792; see also Björn Lundqvist, Marc de Vries, Emma Linklater och Liisa Rajala Malmgren, Business Activity and Exclusive Right in the Swedish PSI Act, Swedish Competition Authority, Uppdragsforskningsrapport 2011:2, available at http://www.konkurrensverket.se/upload/Filer/Trycksaker/Rapporter/uppdragsforskning/forsk_rap_2011-2.pdf.</ref>. This case shows that the underlying economic rationale for the PSI Directive can actually run counter the stated objective of fostering an Open Government. |