HP - Hrvatska posta (Approximation of laws - Open data and re-use of public sector information - Concept of 're-use' - Judgment) [2024] EUECJ C-336/23 (21 November 2024)

Judgment This request for a preliminary ruling concerns the interpretation of Article 1(2) and Article 2 of Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information (OJ 2019 L 172, p. 56). The reference was made in proceedings between HP - Hrvatska pošta d.d. (‘HP’) and the Povjerenik za informiranje (Information Commissioner, Croatia) concerning a request for information made to HP, seeking, inter alia, disclosure of construction contracts, interim payment certificates, and declarations of transfer and acceptance of works. Legal context European Union law Recitals 9, 13, 23 and 70 of Directive 2019/1024 state: ‘(9) Public sector information represents an extraordinary source of data that can contribute to improving the internal market and to the development of new applications for consumers and legal entities. Intelligent data usage, including their processing through artificial intelligence applications, can have a transformative effect on all sectors of the economy. … (13) One of the principal aims of the establishment of an internal market is the creation of conditions conducive to the development of services and products [EU]-wide and within Member States. Public sector information or information collected, produced, reproduced, and disseminated within the exercise of a public task or a service of general interest, is an important primary material for digital content products and services and will become an even more important content resource with the development of advanced digital technologies, such as artificial intelligence, distributed ledger technologies and the internet of things. … … (23) … This Directive lays down an obligation for Member States to make all existing documents re-usable unless access is restricted or excluded under national rules on access to documents or subject to the other exceptions laid down in this Directive. This Directive builds on the existing access regimes in the Member States and does not change the national rules for access to documents. It does not apply to cases in which citizens or legal entities can, under the relevant access regime, obtain a document only if they can prove a particular interest. … Public sector bodies should be encouraged to make available for re-use any documents held by them. … … (70) Since the objectives of this Directive, namely to facilitate the creation of Union-wide information products and services based on public sector documents, to ensure the effective cross-border use of public sector documents on the one hand by private businesses, particularly by [small and medium enterprises (SMEs)], for added-value information products and services, and on the other hand by citizens to facilitate the free circulation of information and communication, cannot be sufficiently achieved by the Member States but can rather, by reason of the pan-Union scope of the proposed action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 [TEU]. …’ Article 1 of that directive, entitled ‘Subject matter and scope’, provides: ‘1. In order to promote the use of open data and stimulate innovation in products and services, this Directive establishes a set of minimum rules governing the re-use and the practical arrangements for facilitating the re-use of: (a) existing documents held by public sector bodies of the Member States; (b) existing documents held by public undertakings that are: (i) active in the areas defined in Directive 2014/25/EU [of the European Parliament and of the Council of 26 February 2014 on procurement by entities operating in the water, energy, transport and postal services sectors and repealing Directive 2004/17/EC (OJ 2014 L 94, p. 243)]; … (c) research data pursuant to the conditions set out in Article 10. 2. This Directive does not apply to: … (b) documents held by public undertakings: (i) produced outside the scope of the provision of services in the general interest as defined by law or other binding rules in the Member State; (ii) related to activities directly exposed to competition and therefore, pursuant to Article 34 of Directive 2014/25/EU, not subject to procurement rules; … (d) documents, such as sensitive data, which are excluded from access by virtue of the access regimes in the Member State, including on grounds of: (i) the protection of national security (namely, State security), defence, or public security; (ii) statistical confidentiality; (iii) commercial confidentiality (including business, professional or company secrets); … (f) documents access to which is restricted by virtue of the access regimes in the Member States, including cases whereby citizens or legal entities have to prove a particular interest to obtain access to documents; … 3. This Directive builds on, and is without prejudice to, Union and national access regimes. … 7. This Directive governs the re-use of existing documents held by public sector bodies and public undertakings of the Member States …’ Article 2 of Directive 2019/1024, entitled ‘Definitions’, is worded as follows: ‘For the purpose of this Directive the following definitions apply: (1) “public sector body” means the State, regional or local authorities, bodies governed by public law or associations formed by one or more such authorities or one or more such bodies governed by public law; (2) “bodies governed by public law” means bodies that have all of the following characteristics: (a) they are established for the specific purpose of meeting needs in the general interest, not having an industrial or commercial character; (b) they have legal personality; and (c) they are financed, for the most part by the State, regional or local authorities, or by other bodies governed by public law; or are subject to management supervision by those authorities or bodies; or have an administrative, managerial or supervisory board, more than half of whose members are appointed by the State, regional or local authorities, or by other bodies governed by public law; (3) “public undertaking” means any undertaking active in the areas set out in point (b) of Article 1(1) over which the public sector bodies may exercise directly or indirectly a dominant influence by virtue of their ownership of it, their financial participation therein, or the rules which govern it. A dominant influence on the part of the public sector bodies shall be presumed in any of the following cases in which those bodies, directly or indirectly: (a) hold the majority of the undertaking’s subscribed capital; (b) control the majority of the votes attaching to shares issued by the undertaking; (c) can appoint more than half of the undertaking’s administrative, management or supervisory body; … (6) “document” means: (a) any content whatever its medium (paper or electronic form or as a sound, visual or audiovisual recording); or (b) any part of such content; … (11) “re-use” means the use by persons or legal entities of documents held by: (a) public sector bodies, for commercial or non-commercial purposes other than the initial purpose within the public task for which the documents were produced, except for the exchange of documents between public sector bodies purely in pursuit of their public tasks; or (b) public undertakings, for commercial or non-commercial purposes other than for the initial purpose of providing services in the general interest for which the documents were produced, except for the exchange of documents between public undertakings and public sector bodies purely in pursuit of the public tasks of public sector bodies; …’ Croatian law Article 5 of the zakon o pravu na pristup informacijama (Law on the right of access to information) ( Narodne novine , br. 25/13, 85/15 and 69/22; ‘Law on the right of access to information’) provides: ‘The individual terms in this Law shall have the following meaning: … (2) “Public authorities” mean bodies of State administration, other State bodies, local or regional authority units, legal persons and other entities exercising public powers, legal persons founded by the Republic of Croatia or by a local or regional authority unit, legal persons pursuing a public task, legal persons which, under separate provisions, are financed mainly or entirely from the State budget or from the budgets of local or regional authority units, that is to say from public funds (taxes, fees and so forth), and also commercial companies in which the Republic of Croatia and local or regional authority units have, individually or jointly, a majority shareholding; … (5) “Right of access to information” includes the right of a user to request and obtain information, and also the obligation on a public authority to provide access to the requested information, that is to say publish information regardless of the request made, when such publication results from an obligation laid down in law or other rules; (6) “Re-use” means the use, by natural or legal persons, of information held by a public authority for commercial or non-commercial purposes other than the initial purpose for which the information was generated, and which takes place within the scope of activities or tasks generally considered to be public tasks, as defined in law or other rules. The exchange of information between public authorities in the pursuit of tasks within the scope of their activities shall not constitute re-use; …’ Article 15 of that law, which appears in Chapter IV thereof, entitled ‘Restrictions on the right of access to information’, provides: ‘… (2) Public authorities may restrict access to information: … 2. if the information constitutes business or professional secrets, in accordance with the law; … (4) Public authorities may restrict access to information if: 1. the information is in the process of being drawn up within one or more public authorities, and publication thereof prior to the production of the complete and final information could seriously disrupt the process of its production; … (8) Access to information referred to paragraph 4(1) of this article may also be restricted after the information has been completed, in particular if such publication would seriously disrupt the decision-making process and the expression of views or would lead to a misinterpretation of the content of the information, except where there is an overriding public interest in publishing the information. …’ Under Article 27 of the Law on the right of access to information, which forms part of Chapter VI thereof, entitled ‘Re-use of information’: ‘… (2) The public authority shall enable users to access open data and re-use information by making public information suitable for re-use or on the basis of requests for re-use. … (5) For the purpose of re-use, public authorities shall not be obliged to generate and adapt information or extract parts thereof if this requires a disproportionate consumption of time or resources; nor may a public authority be required to update, improve or store the information for the purpose of re-use. …’ Article 29 of the Law on the right of access to information, entitled ‘Request for re-use of information and protection of users’ rights’, provides: ‘(1) In a request for the re-use of information, the applicant must, in addition to the data referred to in Article 18(3) of this Law, state the information he or she wishes to re-use, the form and manner in which he or she wishes to receive the content of the requested information, and also the purpose of the use of the information (commercial or non-commercial purpose). (2) The following entities shall not be obliged to act in accordance with a request for re-use of information: … 2. commercial companies in which the Republic of Croatia or a local or regional authority unit exercises, or may exercise, directly or indirectly, a dominant influence by virtue of its ownership of such a company, financial participation therein or the rules which govern its actions, and which: - carry on activities related to the sectors of gas and thermal energy, electricity, water management, transport services, airports, sea and river ports, postal services, oil and gas extraction, and exploration or extraction of coal or other solid fuels, in accordance with the law governing public procurement, … (7) An appeal against a decision on the re-use of information may be lodged with the [Information] Commissioner within 15 days of the delivery of the decision. Orders made by the [Information] Commissioner shall not be open to appeal, but administrative court proceedings may be initiated before the Visoki upravni sud [(High Administrative Court, Croatia)]. …’ The dispute in the main proceedings and the questions referred for a preliminary ruling HP, a company 100% owned by the Republic of Croatia, is the universal postal service provider in that Member State. It also carries on commercial activities. HP received a request for information concerning, inter alia, construction contracts, interim payment certificates, and declarations of transfer and acceptance of works. As that request was refused by HP, an appeal against that refusal decision was brought before the Information Commissioner who ordered HP to comply with that request. HP brought an action against the Information Commissioner’s order and the Visoki upravni sud (High Administrative Court) referred the case back to that body for reconsideration on the grounds that, as at the date on which the Information Commissioner issued the order, the time limit for transposing Directive 2019/1024 had expired and that the obligation to disclose imposed on HP by that commissioner should be examined in the light of the new definitions and exceptions provided for by that directive. Ruling on the referral back, the Information Commissioner again ordered HP to provide the requested information. HP brought an action against that order before the Visoki upravni sud (High Administrative Court), which is the referring court. In support of its action, HP submits, inter alia, that Directive 2019/1024 has been incorrectly transposed into Croatian law, in that the concept of ‘public authority’, within the meaning of the Law on the right of access to information, does not have the same scope as the concept of ‘public undertaking’ within the meaning of Article 2(3) of that directive. Furthermore, it submits that the definition of that concept in Directive 2019/1024 applies both to the re-use of information and to the right of access to information. HP claims, lastly, that the information which it was ordered to produce is linked to its sectoral activity and that it constitutes business secrets. The Information Commissioner submits, for its part, that the dispute in the main proceedings does not concern the exercise of the right to re-use information, but that of the right of access to information; it claims that Directive 2019/1024 governs open data and the re-use of public sector information, not the right of access to information. The referring court considers that, in order to resolve the dispute before it, it must decide whether HP was required to disclose, in the main proceedings, information not directly related to the provision of services of general interest, which would entail, in particular, determining the scope of the concept of ‘re-use’ of information, within the meaning of Directive 2019/1024. In those circumstances the Visoki upravni sud (High Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Is the term “re-use of information” for the purposes of Article 2(11) of Directive [2019/1024] to be understood as meaning access to any information which a public sector body/public undertaking has produced or holds, and which a user (natural or legal person) requests from a public sector body for the first time? (2) Can a request for information which a public sector body/public undertaking has produced or which it holds, and which was generated within the scope of its activities or in connection with its organisation and work, be regarded as a request for information to which the provisions of that directive apply, that is to say, do the provisions of that directive apply to all requests for information held by public sector bodies? (3) Are the entities obliged to provide information, listed in Article 2 of [Directive 2019/1024], only those public sector bodies to which requests for re-use of information are made, or do the new definitions concern all public sector bodies and all information held by those bodies, that is to say, are the entities listed in Article 2 of the Directive obliged to provide information they have produced or hold, or are the entities listed in Article 2 of [that directive] considered to be obliged to provide information only where the information is re-used? (4) Can the exceptions to the obligation to make information available under Article 1(2) of [Directive 2019/1024] be regarded as exceptions by virtue of which public sector bodies may refuse to provide information produced or held by them, or are they exceptions which apply only where requests have been made to the public sector bodies for re-use of the information?’ Procedure before the Court By order of the President of the Court of 27 July 2023, HP - Hrvatska pošta (C-336/23, EU:C:2023:617 ), the request from the Visoki upravni sud (High Administrative Court) for the present case to be determined pursuant to the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice was refused. Consideration of the questions referred As a preliminary point, it should be noted, first, that it is apparent from the order for reference that the request giving rise to the dispute in the main proceedings, referred to in paragraph 11 above, concerned solely access to documents held by a public sector body, without pertaining to the re-use of those documents. Second, it is apparent from that order for reference that, according to the referring court, the relevant date for determining the law applicable ratione temporis to the dispute in the main proceedings is that of the adoption, by the Information Commissioner, of the order directing HP to grant that request, a date as at which the time limit for the transposition of Directive 2019/1024 had expired. In that regard, it should be recalled that, according to well established case-law, the questions relating to the interpretation of EU law are referred by the national court in the factual and legal context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine (judgment of 27 April 2023, M. D. (Ban on entering Hungary) , C-528/21, EU:C:2023:341 , paragraph 55 and the case-law cited). Thus, by its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directive 2019/1024 must be interpreted as meaning that a request for access to documents held by a public sector body falls within its scope. In that regard, it should be noted that, as is apparent from Article 1(1) of Directive 2019/1024, read in the light of recitals 9, 13 and 70 thereof, that directive seeks to promote the use of open data and to create conditions conducive to the development, EU-wide and within the Member States, of digital content products and services based on public sector documents with the aim of improving the functioning of the internal market. To that end, that directive establishes a set of minimum rules governing the re-use, and the practical arrangements for facilitating the re-use, of documents held by public sector bodies of the Member States and by certain public undertakings and the re-use of research data. Under Article 2(11) of that directive, ‘re-use’ means the use of such documents by persons or legal entities, for commercial or non-commercial purposes other than for the initial purpose within the public task, or the initial purpose of providing the services in the general interest, for which those documents were produced. Although ‘re-use’, within the meaning of Directive 2019/1024, presupposes access to the documents concerned, the fact remains that they are two clearly distinct operations (see, by analogy, judgment of 27 October 2011, Commission v Poland , C-362/10, EU:C:2011:703 , paragraph 54). That directive governs, as stated in Article 1(7) thereof, the re-use of existing documents held by public sector bodies and public undertakings of the Member States, without, however, laying down any obligation with regard to access to documents. Indeed, in accordance with Article 1(3) of Directive 2019/1024, read in the light of recital 23 thereof, that directive builds on, and is without prejudice to, the existing EU and national access regimes. Article 1(2)(d) and (f) of that directive provides, in addition, that the directive is not to apply to documents access to which is excluded or restricted by virtue of the access regimes in the Member States. Thus, Directive 2019/1024 does not enshrine a right of access to public sector documents, but presupposes the existence of such a right in the law of the Member States or in EU law, with the result that the conditions of access to those documents do not fall within the scope of that directive (see, by analogy, judgment of 14 November 2018, NKBM , C-215/17, EU:C:2018:901 , paragraph 32). In the light of the foregoing considerations, the answer to the questions referred is that Directive 2019/1024 must be interpreted as meaning that a request for access to documents held by a public sector body does not fall within its scope. Costs Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable. On those grounds, the Court (Tenth Chamber) hereby rules: Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information must be interpreted as meaning that a request for access to documents held by a public sector body does not fall within its scope. [Signatures] * Language of the case: Croatian. 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