Institutional Backing and PSI Reuse: is the EU Going Too Far or Just Going in the Wrong Way?


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/reuse and provide with rapid and inexpensive mechanisms of resolution of disputes. 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.