Questions

Below are questions that arise through the research process. They will come up on a regular basis. Shall you have an answer, you are welcome to publish it.

1. The Swedish report "Business Activity and Exclusive Right in the Swedish PSI Act" in page 12 and 13 refers to the relation between business activity and public task and the prevalecense of one or the other depending on ... So I don't have it clear when does section 9 the Swedish Act applies and when does section 4.

2. The Swedish report "Business Activity and Exclusive Right in the Swedish PSI Act" in page 19 refers to "government agency", the question is whether there a difference between government agency and public body for the purpose of the PSI Directive.

3. Marc de Vries claims that the PSI Directive blends 4 areas of law: ICT law, freedom of information law, IP law and competition law. I would say that it also blends administrative law (derecho administrativo-förvaltningsrätt). Not sure if this could be so, I would like to get support for my claim, so any help on this will be welcome.

4. Competition Law is one of the pillars  of the PSI Directive, how does this apply to Public Sector Bodies? Do they actually have to follow competition rules as the Directive says in Recital 20?

5. This is a clarification of the term "economic" of the Swedish report, it is relevant because it is one of the reasons to apply or not competition law: the Swedish report argues that PSBs acting as an "undetaker" will fall under competition law. Undertaker is defined in the Höfner judgement of ECJ as "every entity engaged in an economic activity, regardless of the legal status of the entity and the way it isfinanced." And how is "economic" defined? The European court focus on the nature, aim, and financing arrangements when decidinng the scope of application. So when PSBs offers product or services in the market in circumstances that those same product and services could be offered by private undertakers, then that should be considered economic activity, being irrelevant that the PSB wants to make a profit out of it or not. The question is why should a PSB decide to take on a position in the market and become a private player in the economic game? According to Art 106(2) they can only do that if is for the general public interest, but in this case, Art 106(2) exempts PSBs from cometition law.