Tuesday 23 January 2007 4:28:55 pm
Detecting the existence of a level playing field!
Directive 2003/98/EC Article 10 Non-discrimination requires public sector Information holders to ensure a level playing field exists between all re-users whether they be within the Private Sector or the Public Sector.
Article 10(2) specifically applies to public sector bodies that also have a commercial role as well as a public task role. In such cases the public task side of the PSIH must apply similar terms and conditions, including price, to the commercial part of the public sector body as to other re-users of their data.
The question then arises as to how does a potential re-user know that Article 10(2) is being applied? This issue is magnified even further when the PSIH does not publish separate annual accounts, has common management structures, and overall there is a lack of transparency.
Often the first indication that all is not well is when a re-user is in direct competition for an open tender and finds that they are being undercut by the commercial part of the PSIH and that terms and conditions are being applied to the commercial part of the PSIH that are providing an advantage over external re-users - for example fixing a price for a given period.
Detecting the lack of level playing field is a hot topic as it appears in complaints - refer to the Cases section of the ePSIplus web site, raised with Members of Parliament - refer to ePSIplus news items. The very presence of these since 1 July 2005 would indicate that PSIH's are not complying with the Directive Article 10(2).
The regulators that have investigated complaints also find that they are impeded by the poor accounting practices that exist within PSIH's. If the regulator whom has special powers finds this a difficult task - that is establishing whether a level playing field is in operation; then it is even more difficult for external re-users that have no powers apart form placing complaints, making appeals and taking legal action.
It would seem that there is a general feeling by re-users that the PSIH's are not complying with Article 10(2).
The ePSIplus thematic meetings will be exploring this particular issue.
The questions then arises what more needs to be done to ensure Article 10(2) is met?
Are there good case studies within Europe that can be used as prime examples of good practice where the PSIH has complied and that it is visible that they have complied?
If a PSIH has not complied with Article 10(2) what action has been taken by the regulators?
If regulators are taking action are they ensuring the timescale is consistent with the re-users business opportunities?
A simple solution would be for the commercial public entities to be run as separate public sector organisation's or even for the public sector to with draw from these commercial activities altogether!
What has been your experience of the above?
