Policy Recommendation Regarding the Interface Between the Protection of Commercial Secrecy and the Re-use Of public Sector Information

Razvan Dinca

Abstract

In respect of the competing interests related to favoring re-use of PSI, on one side, and protecting the commercial secrecy, on the other side, no reasonable reasons were identified to put in question the current perspective of EU law in its essential aspect: as a rule, the access to PSI which derives private economic value from its confidential nature should be barred to re-users; by exception, only if specific public interest so requires, the confidential nature of the information may be set aside, but in this case with adequate compensation for the affected legitimate interest related to business secrecy. Such compensation might include obstacles to re-use, which are limited in time, space and scope. 

From this perspective, the current wording of the Article 1, paragraph 2, letter c, second line of the Directive 2003/98/CE which excludes from its scope „documents which are excluded from access by virtue of the access regimes in the Member States, including on the grounds of statistical or commercial confidentiality” seems adequate for two reasons. First, as a rule the confidentiality nature of the trade secrets determines, as a rule, an obstacle to access, and not merely to re-use. In these cases, the obstacle to re-use is only a natural consequence of the obstacle to access. Second, by exception, the access regime to confidential information may be more liberal in consideration of specific public policies. Still, even in those cases, as a compensation for the originator of the information, some limited restrictions may be imposed to re-use. Therefore, again, the restriction to re-use appears as a consequence of the legal regime of access.

This provision however creates a side problem which has no solution of principle in the EU Directive of PSI re-use. This problem is for the PSB to practically determine which of the information reached under its control is of such a nature that it is enti - tled to refuse third parties’ access for the purposes of re-use. In order to answer this problem, the paper recommends a uniform set of guidelines to be adopted by the EU Commission regarding the good practices of identifying and protecting the PSI in which private parties have legitimate interests related to commercial secrecy.

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