Question (NPOC)

The Community is obligated to apply the rules of tender if the authorities require payment from the public authorities or institutions and bodies of the Community, CIB that use their spatial data sets and services. What are the Commissions expectations in regards to the Member States obligations if the Community institutions are obligated to adhere to the rules of tender?

Answer (EC Inspire Team)

If a public authority requires payment from a CIB then this should be in-line with applicable EU legislation:

  1. Article 10 of the EU Treaty: Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. They shall abstain from any measure which could jeopardise the attainment of the objectives of this Treaty.
  2. INSPIRE directive – Article 17 in general, Article 17.3 "...any such charges should and licenses must be fully compatible with the general aim of facilitating sharing...".

If a public authority in a Member States decides to react to a call for tender, then the Member State must ensure that 1) and 2) are respected. – If a public authority decides not to react to a call for tender and its data is required to facilitate the achievement of the Community's tasks, then the CIB can point out to the Member State that they need access and use of the spatial data and services.

(WS Legal Issues 17.06.2010)

Request for complementary clarifications (NPOC) and Answer (EC Inspire Team)

The Commission is making a reference to the EU Treaty article 10. Please, could you tell us why you are making this reference as it should be enough to make a reference to the INSPIRE directive as the Member States are obligated to respect the directive?

The Commission wanted to clarify the question regarding the 'Commissions expectations'. The Commission therefore referred to Article 10 of the EU Treaty, as a source of primary EU law or better Article 4 paragraph 3 of TEU (Lisbon). This to point out that there is the general expectation that Member States will facilitate the achievement of the Community's tasks and abstain from any measure which could jeopardise the attainment of the objectives of the Treaty.

Secondary legislation, such as the INSPIRE Directive and its implementing rules narrow down the scope. The INSPIRE Directive, as any other EU piece of legislation, can not be taken into account in isolation; all the EU legislation in force constitutes a background for its application. This includes law and regulations regarding public procurement

As for the last line in the answer “then the Community Institution or Body can point out to the Member State that they need access and use of the spatial data and services.” What does the Commission mean by “can point out”, please specify the obligation for the Member State?

In this respect we need to consider "COMMISSION REGULATION (EU) No 268/2010 of 29 March 2010 implementing Directive 2007/2/EC of the European Parliament and of the Council as regards the access to spatial data sets and services of the Member States by Community institutions and bodies under harmonised conditions." - Article 7 Response Times: "Member States shall provide access to spatial data sets and services without delay and at the latest within 20 days after receipt of a written request, unless otherwise agreed by mutual agreement between the Member State and the institution or body of the Community".

This means that the call for tender specifications will make reference to the applicable INSPIRE legislation, legislation to which Member States are bound.

One can argue that the Member State has already fulfilled its obligation to share its data by giving the Commission Institution or Body access on the terms and conditions stated in the metadata or in the response given to the Institution or Body when asking for access to the data.

The obligation on sharing, understood as access and use, is not limited to metadata. See article 7 of Commission Regulation 268/2010.

Even if the Member State is obligated to answer a call for tender the Member State is not obligated to change a charging policy.

There is no obligation to share the charging policy, provided this policy is compatible with rights and obligation laid down in article 17 of the INSPIRE Directive.

If the Community Institution or Body objects to the charging because it seems too high the Member State might be able to justify the charging policy because the charges follows the principles of Article 17.3.

This is possible, bearing in mind the other rights and obligations under Article 17. If contested, any party may file a complaint at national level or with Commission, which may then decide after assessment to pass it over to the Court of Justice (infringement procedure).

Finally if the Commission interprets that answering a call for tender is a requirement for fulfilling the “sharing of spatial data and services”, then please tell us how this is in line with the intention of the directive? Because if a Member State is obligated to answer a call for tender this will change the obligation in article 17.1 from being an obligation to adopt measures for the sharing of spatial data sets and services to become an obligation to actively seek out calls for tenders to be able to fulfil a possible obligation and this doesn’t seem to be the intention of the INSPIRE-directive.

The INSPIRE directive and its implementing rules do not oblige answering to a call for tender. However, when for example a request is made according to, Article 7 of Commission Regulation 268/2010, it would be beneficial for all parties is the measures put in place by the Member States to fulfil the INSPIRE Article 17 rights and obligations, include a pragmatic solution. Fact is, that where charges apply, the CIB will need to follow the Financial Regulation and the applicable public procurement rules. The Financial Regulation foresees a limited number of procedures for concluding a contract including the open and the restricted procedure and the publication of a contract notice in the Official Journal. In exceptional cases, the Commission can use a negotiated procedure rather than an open call for tender. Under this procedure, the Commission can consult economic operators of its choice and negotiate the contract with one or more of them. The negotiated procedure can be used where the contract can only be awarded to a particular economic operator, due to technical or artistic reasons or reasons connected with the protection of exclusive rights. This is directed towards specific products for which there is only one particular supplier and there is no competition on the market, that is, when there is in fact a monopoly situation. This may be the situation for some of the INSPIRE datasets and services.

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