A landmark decision in the Landmark case!
Source: Marc de Vries, Legal Affairs Correspondent
Commentary on the outcome of the Landmark Nederland BV v Amsterdam City Council case
The Dutch Council of State, the highest administrative court in the Netherlands, has ruled in favour of Landmark BV, a Dutch subsidiary within the Landmark Information Group, a leading re-user on the field of digital mapping, property and environmental risk information. Doing so, it has brought an end to a legal conflict between Landmark and the municipality of Amsterdam that has been dragging on for almost three years.
Core of the conflict were the conditions imposed by the municipality connected to a set of its data which Landmark wanted to re-use, in particular the prices charged. The District Court ruled in favour of Landmark, which decision was appealed against by the municipality.
Interestingly, the whole case centred around the question whether the municipality could be regarded as the producer of the database (which Landmark wanted to re-use partly). The Council of State started its line of reasoning with the observation that “for the applicability of the re-use regime two requirements are to be met: (1) there needs to be a database (2) the government needs to be the producer of that database”, referring to article 11a (1) of the Freedom of Information Act, implementing article 1(2)(b) of the Directive.
The Council of State then continued its journey into the land of database law whereby it considered that since the municipality had built the database in view of its public task and that a substantial part of the resources required had been furnished by the Dutch central government (so not by the municipality itself) the municipality was not to be regarded as the producer of database. Returning to its starting point, the Council of State thus concluded that the municipality could not rely on the re-use regime (at all) brought about by the Directive and, as consequence, could not connect conditions to the reuse of the data.
Obviously, it is a very good thing that this dispute has now come to an end: Landmark had been investing heavily in the build up of this database which would add great value for all sorts of organisations and the position of Amsterdam made it very difficult to complete the coverage. Nevertheless, it is unfortunate that the point of the pricing – were the charges in conformity with article 6 of the Directive - which is still a piece of no-mans-land in the new battle field of re-use of public sector information – has not been addressed. However, there is always a next one!
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