Fact Sheet

Version May 2010

Clarifying the Concept of Public Task

What is this fact sheet about? The concept of public task is a crucial element of the PSI Directive. It establishes a demarcation line indicating where the PSI Directive starts to apply. The Directive is rather short on clues as to the exact meaning of the term and essentially leaves the definition to the laws and practices of the Member States. However, there are some thumb rules that can be applied, as you will see. Public task is the demarcation line for applicability The starting point of the PSI Directive is the notion that public sector bodies (PSBs) have been established to perform a task: the public task. This is the raison dtre for the public sector. These tasks are often laid down not only in formal laws (like the Law on the Cadastre or the Law on the National Meteorological Institute) but also in documents like bylaws. In the process of performing this public task, PSBs collect, produce, reproduce, and disseminate documents. This is the PSI the Directive wants to catch: PSI that is anyway produced for a PSBs own needs, whereby the public task is the demarcation line for application of the Directive. Scope of public task is broad The Directive does not say what falls within its area of application, but rather leaves this to national law or common administrative practice. In practice, as a rule, where activities of the PSB will be undertaken under a public mandate, the PSI created in that process will fall within the scope of the Directive. PSBs own commercial exploitation outside public task Interestingly, although somewhat hidden, the Directive (recital 9) provides another clue: in case a PSB re-uses its own PSI commercially, it must take care not to discriminate against other re-users in its charging policy or re-use conditions: To avoid cross-subsidies, re-use should include further use of documents within the organisation itself for activities falling outside the scope of its public tasks.
More red than green arrows increases likeliness that activity is outside public task
no no no no

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. Accordingly, this recital tells us which elements to consider in the assessment of the scope of the public task and sets out an example of supply that would normally be outside the public task. These elements provide strong evidence as to the character of the activities. If they are present, the PSBs behaviour would typically be outside its public task. More clues needed Obviously, this assessment may be complicated if national laws explicitly mandate that the PSB undertake commercial activities. In the last decennium quite a few PSBs have incorporated such provisions as statutory tasks. This is an issue of ongoing debate between PSBs and re-users and has been the subject of quite a few court cases. Some rules of thumb Furthermore, this clue in the Directive only relates to a PSBs own exploitation and does not tell us anything about the initial activities to create the documents. Fortunately, some thumb rules have been established (Dr Katleen Janssen, Ph.D., and the UK regulator TNA (formerly OPSI)), which give strong circumstantial evidence as to the public task character of PSI, and the subsequent potential applicability of the Directive. These are captured in the public task score chart below..
More green than red arrows increases likeliness that activity is inside public task and Directive applies

1. 2. 3. 4. 5. 6.

no

Rules of thumb Is the supply of PSI the result of the legal regime the PSB works under? Is the supply of PSI essential for the everyday actions of the PSB? Is there a strong public interest in opening up the PSI? Is the PSB filling a gap where there is a market failure? Is the information (service) already being provided on the market? Does the PSI explain the policy of the PSB?

yes yes yes

yes yes yes

no

7.
no

Does the citizen consider the information to be key to its relationship with the public sector? Does the PSI enjoy an authoritative status by virtue of its issue by the public sector?

yes

8.
no

yes

ePSI Platform Fact Sheets provide short introductions to key concepts and developments, allowing new comers to the PSI re-use arena to get up to speed swiftly. Find ePSI Platform Fact Sheets at epsiplatform.eu.