Legal provisions of COM(2023)402 - Amendment of Regulation (EC) No 223/2009 on European statistics

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dossier COM(2023)402 - Amendment of Regulation (EC) No 223/2009 on European statistics.
document COM(2023)402
date July 10, 2023

Regulation (EC) No 223/2009 is amended as follows:

(1) Article 3 is amended as follows:

(a) the following points 4a, 4b, 4c, 4d and 4e are inserted:

‘4a. ‘data’ means any digital or non-digital representation of acts, facts and information;

4b. ‘metadata’ means any data that defines and describes other data and processes, or is used in this way;

4c. ‘data holder’ means a legal or natural person who has the right, in accordance with applicable Union or national legislation implementing Union law, or the ability, to make available certain data;

4d. ‘reuse of data’ means the use by national statistical authorities and the Commission (Eurostat) of data held and made available by data holders for the development, production and dissemination of European statistics;

4e. ‘data sharing’ means the provision of data or the permission of data reuse by a statistical authority to another statistical authority for the purpose of joint or individual use of such data for statistical purposes;’;

(b) the following points 5a, 5b and 5c are inserted:

‘5a. ‘data source’ means a source providing data that is relevant, in itself or in combination with data from other sources, for the development and production of statistics, including surveys, censuses, administrative records or data made available by data holders on request;

5b. ‘data access’ means processing by a national statistical institute or the Commission (Eurostat) of data that has been provided by a private data holder, in accordance with specific technical, legal or organisational requirements, without necessarily requiring the transmission or downloading of such data;

5c. ‘multi-source statistics’ mean statistics developed or produced on the basis of a variety of data sources, including by means of modelling techniques;’;

(c) point 8 is replaced by the following:

‘8. ‘use for statistical purposes’ means the exclusive use for the development and production of statistical results and analyses, including for related research and scientific activities or the establishment of sampling frames;’;

(d) the following point 8a is inserted:

‘8a ‘crisis’ means a situation of wide-ranging impact or political significance generating an immediate and unforeseen demand for European statistics;’;

(2) the following Article 16a is inserted:

‘Article 16a
Statistical response to crisis

1. The Commission (Eurostat) shall examine temporary statistical actions and undertake them as appropriate, subject to the procedures set out in this Article, where both of the following conditions are met:

(a) it is necessary to respond to urgent information needs which arise from a crisis and following, existing or future, emergency mechanisms activated in accordance with Union legal acts, such as:

(i) the temporary protection under Council Directive 2001/55/EC16;

(ii) the Union civil protection mechanism under Decision 1313/2013/EU of the European Parliament and of the Council17;

(iii) the emergency support under Council Regulation (EU) 2016/36918

(iv) the emergency framework under Council Regulation (EU) 2022/237219;

(v) the market correction mechanism under Council Regulation (EU) 2022/257820;

(vi) the emergency mode under Regulation of the European Parliament and of the Council (EU) xx/xx (to be adopted21);

(b) those urgent information needs cannot be met under the European statistical programme.

2. The temporary statistical actions referred to in paragraph 1 shall be carried out by the Commission (Eurostat) at Union level and may include:

(a) producing European statistics based on new data collections;

(b) providing new statistical indicators and insights based on existing data;

(c) developing harmonised statistical methodologies and related methodological guidelines, to ensure that statistics across Member States are comparable and consistent;

(d) other coordinated action at Union level that aims to provide a timely and relevant statistical response to the specific situation.

3. When assessing the need for temporary statistical actions, the Commission (Eurostat) shall promptly inform and consult the ESS Committee and take into account its professional guidance.

4. The NSIs may decide, separately and on a voluntary basis, to participate in these temporary statistical actions, but shall, together with the Commission (Eurostat), ensure the relevance and sufficient coverage of those actions at Union level. When participating in temporary statistical actions, the NSIs shall comply with the common timespan, frequency and quality requirements for the national data to be provided to the Commission (Eurostat).

5. The Commission may, by way of implementing acts, define the temporary statistical actions and set out the procedure for undertaking them, including the relevant timespan, frequency and quality requirements to be applied by those NSIs participating in the temporary statistical action. Those implementing acts shall adopted in accordance with the examination procedure referred to in Article 27(2).

6. Measures adopted under paragraph 5 shall remain in force for a period not exceeding 24 months.’;

(3) in Article 17a, the title is replaced by the following:

‘Access, reuse and integration of administrative records for the development and production of European statistics’;

(4) in Article 17a, paragraph 1 is replaced by the following:

‘1. National public bodies in charge of administrative data sources relevant for development, production and dissemination of European statistics shall allow the NSIs and other national authorities (hereafter ‘ONA’) referred to in Article 4, to access, reuse and integrate, free of charge, this data and the relevant metadata, in timely manner and with sufficient frequency for the purpose of producing and transmitting statistics to the Commission (Eurostat) within the deadlines and in accordance with quality requirements laid down in Union statistical legislation.’;

(5) in Article 17a, the following paragraph 2a is inserted:

‘2a. For the purpose of this Regulation, the Commission (Eurostat) shall be allowed, upon request, to access, reuse and integrate in a timely manner relevant data and metadata from databases and interoperability systems maintained by Union bodies and agencies, and without prejudice to the Union acts establishing these databases and interoperability systems. For this purpose, the Commission (Eurostat) shall cooperate with the relevant Union bodies and agencies to specify the customised data and metadata required, the operational modalities for data reuse and the necessary physical and logical safeguards.’;

(6) in Article 17a, paragraph 5 is replaced by the following:

‘5. The NSIs and owners of administrative records shall establish the necessary cooperation mechanisms. Those mechanisms shall also provide the possibility for the NSIs to perform data quality checks and build statistical frames based on relevant administrative records.’;

(7) the following Articles 17b, 17c, 17d, 17e and 17f are inserted:

‘Article 17b
Obligation of private data holders to make data available for developing and producing European statistics

1. Without prejudice to reporting obligations laid down in sectoral statistical legislation of the Union nor to the obligation for data holders to make data available based on exceptional need in accordance with the Data Act, an NSI or the Commission (Eurostat) may request a private data holder to make data and the relevant metadata available for the development and production of European statistics if the annual work programme has established the following conditions:

(a) the data requested is necessary for the development and production of European statistics; and

(b) the data cannot be readily obtained by alternative means such as surveys or reuse of administrative records, or their reuse will result in a considerable reduction in the response burden on data holders and other businesses.

2. As coordinator of the national statistical system, an NSI may submit a request for data to a private data holder on behalf of an ONA, when the data requested is necessary for European statistics developed and produced by that ONA.

3. The NSIs and the Commission (Eurostat) shall cooperate and mutually assist each other in order to avoid excessive requests on private data holders and to determine who is to submit requests for data. In particular, the request for data shall be submitted to a private data holder by the Commission (Eurostat), in agreement with the NSIs, when such an approach is more efficient, for instance in the case of data holders operating on a Union wide scale.

4. The Commission (Eurostat) may, in agreement with the NSIs, set up a secure infrastructure to facilitate the further sharing with the NSIs of data that has been accessed in accordance with paragraph 2.

5. This Article shall not apply to small and micro enterprises as defined in Article 2 of the Annex to Commission Recommendation 2003/361/EC22.

Article 17c
Requests for data and arrangements for making data available for development and production of European statistics

1. When requesting data in accordance with Article 17b, the NSIs or the Commission (Eurostat) shall:

(a) specify what data is required;

(b) demonstrate the statistical need for which the data is requested in accordance with Article 17b(1);

(c) specify the frequency with which and the deadlines by which the data is to be made available;

(d) specify the operational arrangements for making the data available;

(e) invite the data holder to the dialogue under paragraph 3.

2. Requests for data referred to in paragraph 1 shall:

(a) follow the principle of data minimisation and be proportionate to the statistical need in terms of the level of detail, volume and frequency of the data;

(b) concern, insofar as possible, non-personal data.

3. Following a request for data referred to in paragraph 1, a dialogue shall take place between the NSI or the Commission (Eurostat) and the concerned data holder to discuss aspects such as the level of aggregation of the data, the deadline and arrangements for the provision of the data, the security and confidentiality protection measures as well as possible cost compensation aspects, with the aim of concluding an agreement on those aspects.

4. If no agreement is concluded within three months following the notification of the request for data referred to in paragraph 1, the NSI or the Commission may, by decision, require the private data holder to make the data available. The decision shall be specific as required under paragraph 1 letters (a) to (d) and shall take into account issues on which views may have converged during the dialogue with the data holder. The decision may also include compensation for the private data holder that shall not exceed the marginal costs related to the preparation required for making the data available. The period for making the data available may not be shorter than 15 days. Before adopting the decision, the NSI or the Commission shall give the data holder the opportunity of being heard on the measures that the NSI or the Commission intend to take. The decision shall indicate the fines provided for under paragraph 6 and the means of redress against it.

5. Without prejudice to reporting obligations laid down in sectoral statistical legislation of the Union, a data holder shall make the relevant data available to the NSI or the Commission (Eurostat) within the period specified in the decision pursuant to paragraph 4 of this Article.

6. The Member States and the Commission shall take appropriate measures to ensure the effective enforcement of the decisions adopted in accordance with paragraph 4. Those measures may include the adoption of fines where the private data holder intentionally or negligently fails to supply the data requested by decision within the set period or supplies incorrect, incomplete or misleading data. In fixing the amount of the fines, the Member State and the Commission shall have regard to the nature, gravity, duration and recurrence of the infringement.

7. In order to comply with paragraph 6, the Commission may adopt decisions imposing fines of maximum EUR 25 000. In case of recurrence within three years the fine may reach EUR 50 000. The Commission may issue guidelines on the calculation of the fine.

8. The Commission may adopt a decision imposing a fine within one year following the deadline for the submission of data laid down in its decision under paragraph 4 where the data holder fails to submit any data or within one year of the submission of incorrect, incomplete or misleading data.

The power of the Commission to enforce decisions imposing a fine shall be subject to a limitation period of five years. Time shall begin to run on the day on which the decision becomes final.

9. Before adopting a decision pursuant to paragraph 6 of this Article, the Member States and the Commission shall give the data holder the opportunity of being heard on preliminary findings and measures that the Member State or the Commission may intend to take in view of the preliminary findings.

10. The Commission shall establish, by way of implementing acts, the general technical arrangements for making data available under this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(2).

Article 17d
Review of decisions imposing fines by the Court of justice of the European Union

In accordance with Article 261 TFEU, the Court of Justice of the European Union has unlimited jurisdiction to review decisions by which the Commission has imposed fines. It may cancel, reduce or increase the fine imposed.

Article 17e
Obligations of NSIs and the Commission (Eurostat) in reusing data made available for development and production of European statistics

1. The NSIs and the Commission (Eurostat) shall use data made available in accordance with Article 17b for the development and production of European statistics:

(a) exclusively for statistical purposes;

(b) in conformity with principles of statistical confidentiality and cost-effectiveness; and

(c) with the obligation not to share them with third parties unless the data holder has agreed.

2. The NSIs and the Commission (Eurostat) shall:

(a) take appropriate measures to protect statistical confidentiality and trade secrets and to preserve other legitimate concerns of private data holders including the cost and effort required to make the data available;

(b) implement, insofar as the processing of personal data is necessary, technical and organisational measures which safeguard the rights and freedoms of data subjects.

3. Paragraphs 1 and 2 of this Article shall apply to an ONA that has received data following a request submitted on its behalf by a NSI in accordance with Article 17b(2).

4. The Commission (Eurostat) shall publish a description of the main categories of costs related to the data processing for which compensation may be granted to the data holder and the methodology for calculating these costs.

Article 17f
Data sharing in the ESS

1. Data shall be shared between NSIs and between NSIs and the Commission (Eurostat) exclusively for statistical purposes and for improving the quality of European statistics.

2. Data sharing shall take place upon request by an NSI or the Commission (Eurostat) where this is relevant and necessary. Data sharing shall also take place when the request is put forward by an NSI on behalf of an ONA and the data is used exclusively for statistical purposes and for improving the quality of European statistics developed and produced by that ONA.

3. The NSIs, and when relevant the ONAs, participating in the data sharing within the ESS shall provide all necessary safeguards with regard to the physical and logical protection of data confidentiality. The Commission (Eurostat) shall set up a secure infrastructure to facilitate data sharing. The NSIs, and when relevant the ONAs, may use that secure data sharing infrastructure for the purpose specified in paragraph 1.


4. When the data concerned is confidential data within the meaning of Article 3 of this Regulation or is personal data as defined in Regulations (EU) 2016/679 and (EU) 2018/1725, the sharing of such data shall be allowed and may take place on a voluntary basis provided it fulfils all of the following conditions:

(a) it is based on a request justifying the necessity to share the data in each individual case, in particular with regard to the quality issues that are to be specifically addressed;

(b) it is based on privacy-enhancing technologies that are specifically designed to comply with Regulations (EU) 2016/679 and (EU) 2018/1725, with particular regard to purpose limitation, data minimisation, storage limitation, integrity and confidentiality;

(c) it does not affect Chapter V of this Regulation.

5. The data requested under this Article shall not pertain to issues of national security and military matters.

6. The Commission shall, by means of implementing acts, set out the technical aspects of data sharing between the statistical authorities referred to in this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 27(2).

7. This Article is without prejudice to Article 21 of this Regulation.’;

(8) the following Chapter IIIa is inserted:

‘CHAPTER IIIa

DEVELOPMENT OF EUROPEAN STATISTICS

Article 17g
Statistics under development

1. The NSIs, the ONAs and the Commission (Eurostat) shall endeavour to continuously innovate and develop new statistical outputs and insights based on all available data sources and to use state of the art technologies, with the aim of integrating them in the regular production of European statistics.

2. European statistics shall be developed in full compliance with the statistical principles, as set out in Article 2(1). Statistics under development may not necessarily fulfil all the quality criteria set out in Article 12(1).

3. The Commission (Eurostat) shall disseminate European statistics under development with the agreement of the NSIs and shall explicitly indicate that these statistics are under development.

4. The Commission (Eurostat) may initiate, in close cooperation with the ESS Committee, the development of new statistical outputs and insights in a coordinated manner across the ESS. Those statistical outputs and insights shall be included in the annual work programme and implemented through individual statistical actions referred to in Article 14(1).’;

(9) in Article 18, the following paragraph 4 is inserted:

‘4. The Commission (Eurostat) may use European statistics published at national level by the Member States ahead of the deadlines set out in the relevant sectoral legislation and disseminate these statistics before the time envisaged in that sectoral legislation, providing it complies with the definitions and classification.’;

(10) Article 25 is replaced by the following:

‘Article 25
Publicly available data

Data that is lawfully available to the public shall not be considered confidential when used for statistical purposes.’;

(11) the following Article 26a is inserted:

‘Article 26a
Contribution to new national data governance frameworks

1. In compliance with the principle of subsidiarity, the NSIs may assume at national level functions as laid down in the national data governance frameworks with the goal of promoting data integration and inter-operability, metadata description, quality assurance and standard setting, as well as other tasks and functions laid down in Regulation (EU) 2022/868 of the European Parliament and of the Council,23 and identify new data sources to be used for the development and production of statistics.

2. The performance of such functions by the NSIs shall be compatible with the statistical principles, as set out in Article 2(1).’;

(12) the following Article 27a is inserted:

‘Article 27a
Evaluation and review

By [five years after the entry into force of this amending Regulation], the Commission shall carry out an evaluation of this Regulation and submit a report on its main findings to the European Parliament and to the Council. That evaluation shall assess, in particular:

(a) the statistical response to crisis under Article 16a;

(b) the obligation of data holders to allow their data to be reused for European statistics in accordance with Articles 17b, 17c, 17d and 17e;

(c) the data sharing in the ESS under Article 17f;

(d) the development of European statistics under Chapter IIIa.’.

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.