main principles of the directive

Mr. U. FANTIGROSSI
Lawyer and professor
Ms. A.FOTI
Lawyer
LAPSI MEETING
Bocconi University – Milan
5/6 May 2011
Summary
 Introduction: the PSI Italian market
 Main principles of the PSI Directive
 PSI and Antitrust Regulation
 Main facts of the Italian court cases
 Summary of the Italian court cases
 Infringement procedure and new PSI regulation
 Suggestions for the future
Introduction: the Italian PSI market
PSI
Land Registry (Agenzia del
Territorio)
Public Registers
Companies’ House (Registro
delle Imprese)
…
Commercial and
economical information
Private
Companies
providing
added-value
services and
products
based on PSI
Companies
Introduction: the Italian PSI market (cadastre and
property information)
These companies uses as "raw material" the PSI. The re-use of
this kind of information is considered a strategic objective by
the European Union (Directive 2003/98/EC).
over a hundred
companies,
large and
small
about 1500 employees
total turnover
of 100
million Euros
MAIN PRINCIPLES OF THE DIRECTIVE
• Public sector bodies should be encouraged to make available
for re-use any documents held (Recital 9)
• Member States should encourage public sector bodies to
make documents available at charges that do not exceed the
marginal costs for reproducing and disseminating the
documents (Recital 14)
• Wider possibilities of re-using PSI should allow European
companies to exploit its potential and contribute to
economic growth and job creation (Recital 5)
MAIN PRINCIPLES OF THE DIRECTIVE
• “The objectives of the proposed action, namely to facilitate
the creation of Community-wide information products
and services based on public sector documents, to enhance
an effective cross-border use of public sector documents by
private companies for added-value information products
and services and to limit distortions of competition on the
Community market” (Recital 25)
• “If documents are re-used by a public sector body as input
for its commercial activities which fall outside the scope of
its public tasks, the same charges and other conditions
shall apply to the supply of the documents for those
activities as apply to other users” (Art.10.2)
MAIN PRINCIPLES OF THE DIRECTIVE
Communication 2009:
" The Commission encourages MS to define public
tasks in such a way that they allow maximum PSI reuse, and will promote good practices and monitor
developments in this area....".
PSI AND ANTITRUST REGULATION: the Italian Antitrust
Authority (AGCM) position
 the Italian Antitrust Authority (Documents 27.6.2002,
27.1.2006 e 7.12.2006) said that “it is necessary that the
needs of protection of public faith and the needs of
enhancement - in a commercial sense – of the PSI are
pursued by the law maker without sacrificing, at the same
time, the effective development of competition.” (translation of the
italian text)
 The Italian Antitrust Authority in the Opinion dated
27/7/2010 to Unioncamere defines the Companies’ House
data in terms of essential facility and requires them to be
available to firms. Moreover the Authority says that those
data can be used by Infocamere - for economic services only through a separate company.
PSI AND ANTITRUST REGULATION: the Italian Antitrust
Authority (AGCM) position
The Italian Antitrust Law (L.287/90) states that:
Public companies or those in which the State is the majority
shareholder shall operate through separate companies if
they intend to trade on markets other than those on which
they perform the specific tasks assigned to them (art.8 par.
2 bis)
MAIN FACTS OF ITALIAN COURT CASES (cadastral and
property information)
 After the Budget Law 2005 (that subjected the commercial
re-use of cadastral information under a monetary
agreement and particularly heavy fees- to be paid every
time the PSI were re-used) ACIF (an association of
companies re-using PSI) started a significant number of
lawsuits against Agenzia del Territorio.
 Another considerable issue is that Budget Law 2007
increased the fees for the re-users (around 600%) and at
the same time Agenzia del territorio started to offer a value
added service to the banks (the service is called
“monitoraggio”).
SUMMARY OF THE COURT CASES
(about Italian Budget Law 2005)
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Companies involved: 68
Pending cases: 30
Courts of Appeal involved: 20
Orders (in favour of ACIF): 3
Sentences: 16
3 Orders issued in the precautionary phase allowed the companies to
comply with the previous regulation (before the Budget Law 2005).
Currently the trial on the merits is in progress.
8 Sentences in favour of Agenzia del Territorio (appeal to the Supreme
Court of the sentences of TR e FI);
11 Sentences in favour of ACIF. 4 of them are partial
CTU (technical advices) are over or in progress, damages are estimate
for 16 Mil. of Euro;
Damages paid Euro 800.000,00 (TO). Damages provided Euro
1.000.000,00
SUMMARY OF THE COURT CASES
(about the new service of Agenzia del Territorio)
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Companies involved 43 (today 22)
Pending cases 14
Court of Appeal involved 13 (today 8)
Orders issued (in favour of ACIF) 4; + 2 (only
prohibition of testing of the new service, MI e VE);
Sentences issued 5:
In favour of ACIF: 2 (BS e FI) appeal to the Supreme Court
of the sentence of BS;
In favour of Agenzia del Territorio: 2 (TR e AN) appeal to
the Supreme Court pending;
15 CTU (technical advices) are over or in progress
INFRINGEMENT PROCEDURE
(closed after the most recent legislative changes)
Infringement proceeding against Italy for incomplete and
incorrect transposition of the PSI Directive
 art. 4, par. 1 d) of the Italian implementation regulation
(dlgs n. 36/2006). The Decree excluded the commercial
re-use of cadastral and mortgage information from the
provisions of the Directive;
 the increase of the fees, not complying with art.6 of the
Directive;
 the non-compliance with the non-discrimination
principle
NEW PSI REGULATION(L. 4 June 2010 n. 96)
 Italy adopted new PSI legislation in the form of Article 44
of law No 96 of 4 June 2010 amending Decree Law No 36 of
24 January 2006
 Italy abrogated art. 4 par.1 d) of Decree Law No 36 of 24
January 2006
 Consequently, the Italian law maker recognizes and allows
the application of the principles of the Directive to
cadastral information
THE DIGITAL ADMINISTRATION CODE
Decree 82/2005 underlines some important principles stated
by the PSI Directive
“The data of the public bodies are collected, stored, made
available and accessible through the use of information and
communication technologies that enable the use and reuse
by other public bodies and by individuals; except for the
limits provided by the laws and regulations, rules on data
protection and compliance with the EU rules on the reuse
of public sector information.” (translation of the Italian text)
SUGGESTIONS FOR THE FUTURE
 It is very important to ensure that the "integration" of the
two databases do not lead to the developing of new value
added services, exceeding the institutional purposes of the
Public Administration (Agenzia del Territorio) and
consequently causes damages to the PSI market;
 If the Public Administration (Agenzia del Territorio) is
willing to develop new value added service (exceeding its
institutional purposes), Agenzia del Territorio (according
to the Directive and Antitrust Regulations) has to:
a) respect the principle of non-discrimination, and
provision of raw data on individuals under the same
conditions
b) create a separate company
SUGGESTIONS FOR THE FUTURE
 One solution would be to consider that the system of collection and storage of
data, consisting of the network of government offices located on national
territory is a network infrastructure.
 A pipeline and a stretch of railway can be opened to competition by separating
the provision and management of the network from the production of services,
and give the two segments to separate entities and limiting the exemptions to
competition (and therefore the monopoly and / or 'imposition of public service
obligations) to segment the network.
 At the same way, this system can be implemented in the case of the Land
Registry, with a separation of management operations from the production of
value added information services.
 This separation should be strengthened by prohibiting the Public
Administration that has exclusive custody of the network and that is the sole
collector of the data (Agenzia del Territorio) to provide value added
information services : this action will ensure the neutrality in the management
of the network of public data.
Grazie per l’attenzione!
Mr. U. FANTIGROSSI
Lawyer and professor
[email protected]
Ms. A. FOTI
Lawyer
[email protected]
LAPSI MEETING
Bocconi University – Milan
5/6 May 2011