Exposing the Public Interest Dimension of the Digital Single Market: Public Undertakings as a Model for Regulating Data Sharing

Abstract

The availability of public and private data plays a crucial role for the digital single market. Increasing the availability of data by incentivizing and mandating public and private actors to share their data ranks high on the EU policy agenda. When designing suitable legal data sharing regimes, there is an inevitable need to balance multiple public and private interests. While there have been considerable discussions on data sharing between private businesses (B2B), no binding rules have been established yet. In contrast, public undertakings are increasingly covered by mandatory rules. This article focuses on data sharing regulation for public undertakings, which lie at the state-market interface. The way their data is regulated offers a prototype for how to reconcile business reasoning with the public interest. In particular, the article inquires into the design of the recast Public Sector Information (PSI) Directive regarding public undertakings as well as into different national rules which mandate access to public undertakings’ data. On this basis, it discusses four general characteristics which can inform other strands of regulatory debate on data sharing in the EU.

Keywords: Access to information, Competition, Data regulation, Data sharing, Digital Single Market, EU law, Public interest, Public Sector Information, Public undertakings