Mr. U. FANTIGROSSI Lawyer and professor

Ms. A.FOTILawyer

LAPSI MEETINGBocconi University – Milan

5/6 May 2011

Summary

Introduction: the PSI Italian marketMain principles of the PSI Directive PSI and Antitrust RegulationMain facts of the Italian court casesSummary of the Italian court casesInfringement procedure and new PSI

regulationSuggestions for the future

Introduction: the Italian PSI market

PSI

Public Registers

Commercial and economical information

Land Registry (Agenzia del Territorio)

Companies’ House (Registro delle Imprese)

Private Companies providing

added-value services and

products based on PSI

Companies

…

Introduction: the Italian PSI market (cadastre and property information)

over a hundred companies, large and

small

These companies uses as "raw material" the PSI. The re-use of this kind of information is considered a strategic objective by the European Union (Directive 2003/98/EC).

total turnover of 100 million

Euros

about 1500 employees

MAIN PRINCIPLES OF THE DIRECTIVE

• Public sector bodies should be encouraged to make available for re-use any documents held (Recital 9)

• Member States should encourage public sector bodies to make documents available at charges that do not exceed the marginal costs for reproducing and disseminating the documents (Recital 14)

• Wider possibilities of re-using PSI should allow European companies to exploit its potential and contribute to economic growth and job creation (Recital 5)

• “The objectives of the proposed action, namely to facilitate the creation of Community-wide information products and services based on public sector documents, to enhance an effective cross-border use of public sector documents by private companies for added-value information products and services and to limit distortions of competition on the Community market” (Recital 25)

• “If documents are re-used by a public sector body as input for its commercial activities which fall outside the scope of its public tasks, the same charges and other conditions shall apply to the supply of the documents for those activities as apply to other users” (Art.10.2)

MAIN PRINCIPLES OF THE DIRECTIVE

Communication 2009:" The Commission encourages MS to define public tasks in such a way that they allow maximum PSI re-use, and will promote good practices and monitor developments in this area....".

MAIN PRINCIPLES OF THE DIRECTIVE

PSI AND ANTITRUST REGULATION: the Italian Antitrust Authority (AGCM) position

the Italian Antitrust Authority (Documents 27.6.2002, 27.1.2006 e 7.12.2006) said that “it is necessary that the needs of protection of public faith and the needs of enhancement - in a commercial sense – of the PSI are pursued by the law maker without sacrificing, at the same time, the effective development of competition.” (translation of the italian text)

The Italian Antitrust Authority in the Opinion dated 27/7/2010 to Unioncamere defines the Companies’ House data in terms of essential facility and requires them to be available to firms. Moreover the Authority says that those data can be used by Infocamere - for economic services - only through a separate company.

PSI AND ANTITRUST REGULATION: the Italian Antitrust Authority (AGCM) position

The Italian Antitrust Law (L.287/90) states that:

Public companies or those in which the State is the majority shareholder shall operate through

separate companies if they intend to trade on markets other than those on which they perform the specific tasks assigned to them (art.8 par. 2

bis)

MAIN FACTS OF ITALIAN COURT CASES (cadastral and property information)

After the Budget Law 2005 (that subjected the commercial re-use of cadastral information under a monetary agreement and particularly heavy fees- to be paid every time the PSI were re-used) ACIF (an association of companies re-using PSI) started a significant number of lawsuits against Agenzia del Territorio.

Another considerable issue is that Budget Law 2007 increased the fees for the re-users (around 600%) and at the same time Agenzia del territorio started to offer a value added service to the banks (the service is called “monitoraggio”).

SUMMARY OF THE COURT CASES(about Italian Budget Law 2005)

Companies involved: 68Pending cases: 30Courts of Appeal involved: 20Orders (in favour of ACIF): 3Sentences: 163 Orders issued in the precautionary phase allowed the

companies to comply with the previous regulation (before the Budget Law 2005). Currently the trial on the merits is in progress.

8 Sentences in favour of Agenzia del Territorio (appeal to the Supreme Court of the sentences of TR e FI);

11 Sentences in favour of ACIF. 4 of them are partialCTU (technical advices) are over or in progress, damages

are estimate for 16 Mil. of Euro;Damages paid Euro 800.000,00 (TO). Damages provided

Euro 1.000.000,00

SUMMARY OF THE COURT CASES(about the new service of Agenzia del

Territorio)Companies involved 43 (today 22) Pending cases 14Court of Appeal involved 13 (today 8)Orders issued (in favour of ACIF) 4; + 2 (only

prohibition of testing of the new service, MI e VE);

Sentences issued 5:In favour of ACIF: 2 (BS e FI) appeal to the

Supreme Court of the sentence of BS;In favour of Agenzia del Territorio: 2 (TR e AN)

appeal to the Supreme Court pending;15 15 CTU (technical advices) are over or in progress

INFRINGEMENT PROCEDURE(closed after the most recent legislative

changes)

Infringement proceeding against Italy for incomplete and incorrect transposition of the PSI Directive

art. 4, par. 1 d) of the Italian implementation regulation (dlgs n. 36/2006). The Decree excluded the commercial re-use of cadastral and mortgage information from the provisions of the Directive;

the increase of the fees, not complying with art.6 of the Directive;

the non-compliance with the non-discrimination principle

NEW PSI REGULATION(L. 4 June 2010 n. 96)

Italy adopted new PSI legislation in the form of Article 44 of law No 96 of 4 June 2010 amending Decree Law No 36 of 24 January 2006

Italy abrogated art. 4 par.1 d) of Decree Law No 36 of 24 January 2006

Consequently, the Italian law maker recognizes and allows the application of the principles of the Directive to cadastral information

THE DIGITAL ADMINISTRATION CODE

Decree 82/2005 underlines some important Decree 82/2005 underlines some important principles stated by the PSI Directiveprinciples stated by the PSI Directive

““The data of the public bodies are collected, stored, made available and accessible through the use of information and communication technologies that enable the use and reuse by other public bodies and by individuals; except for the limits provided by the laws and regulations, rules on data protection and compliance with the EU rules on the reuse of public sector information.” (translation of the Italian text)

It is very important to ensure that the "integration" of the two databases do not lead to the developing of new value added services, exceeding the institutional purposes of the Public Administration (Agenzia del Territorio) and consequently causes damages to the PSI market;

If the Public Administration (Agenzia del Territorio) is willing to develop new value added service (exceeding its institutional purposes), Agenzia del Territorio (according to the Directive and Antitrust Regulations) has to: a) respect the principle of non-discrimination, and

provision of raw data on individuals under the same conditions

b) create a separate company

SUGGESTIONS FOR THE FUTURE

SUGGESTIONS FOR THE FUTURE

One solution would be to consider that the system of collection and storage of data, consisting of the network of government offices located on national territory is a network infrastructure.

A pipeline and a stretch of railway can be opened to competition by separating the provision and management of the network from the production of services, and give the two segments to separate entities and limiting the exemptions to competition (and therefore the monopoly and / or 'imposition of public service obligations) to segment the network.

At the same way, this system can be implemented in the case of the Land Registry, with a separation of management operations from the production of value added information services.

This separation should be strengthened by prohibiting the Public Administration that has exclusive custody of the network and that is the sole collector of the data (Agenzia del Territorio) to provide value added information services : this action will ensure the neutrality in the management of the network of public data.

Grazie per l’attenzione!

Mr. U. FANTIGROSSI Lawyer and professorufantigrossi@liuc.it

Ms. A. FOTILawyerannamaria.foti@liuc.it

LAPSI MEETINGBocconi University – Milan5/6 May 2011