Explanatory Memorandum to COM(2011)162 - Electronic publication of the Official Journal of the EU - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2011)162 - Electronic publication of the Official Journal of the EU. |
|---|---|
| source | COM(2011)162  |
| date | 04-04-2011 |
The Official Journal of the European Union ensures official publication of the legislation and other acts of the European Union. It has been published on paper since 1958 and, since 1998, it has also been available on the Internet. In recent years, an increasing number of people have been consulting the Official Journal of the European Union on the Internet because it is convenient and quick, while the number of subscriptions for the printed edition has been declining. However, as the printed edition is currently considered to be the only valid and legally binding publication, for the time being legal rights cannot be claimed and obligations cannot be enforced based on the electronic version of the Official Journal of the European Union .
This was clearly stated by the Court of Justice of the European Union in the Skoma-Lux case i. According to the Court, ‘ ... making the legislation available by such means (n.n. on the Internet) does not equate to a valid publication in the Official Journal of the European Union in the absence of any rules in that regard in Community law ’.
Article 297 of the Treaty on the Functioning of the European Union provides that legislative acts and non-legislative acts adopted in the form of regulations or directives, which are addressed to all Member States, or in the form of decisions, which do not specify to whom they are addressed, are to be published in the Official Journal of the European Union . Legislative acts adopted under the ordinary legislative procedure must be signed by the President of the European Parliament and by the President of the Council, while the other acts must be signed by the President(s) of the institution(s) which adopted them. These acts enter into force on the day stipulated in their text or on the twentieth day following that of their publication.
Decision 2009/496/EC, Euratom i sets out in more detail the way in which institutions fulfil their obligations to publish legislative texts. An interinstitutional office – the Publications Office – is entrusted with the publication of the Official Journal of the European Union and guarantees its authenticity.
The proposal aims at broadening access to European Union law and enabling everyone (be they professionals in law or members of the general public) to rely on the electronic edition of the Official Journal of the European Union as being official and authentic. Should the electronic publication of the Official Journal of the European Union be acknowledged as valid publication, all European Union citizens could have virtually simultaneous access to European Union law, immediately after publication and in a more economical manner since consultation of the electronic publication would be free of charge. Also, access for people living in geographically less accessible regions in Europe would also be facilitated. Furthermore, enhanced access is supported by the objectives of the ‘ EUROPE 2020 strategy for smart, sustainable and inclusive growth’[3] that aims at ensuring broadband access for all by 2013.
The proposal also aims to enhance legal certainty compared to the current situation where the online publication serves for information purposes only, as rights could be enjoyed and obligations enforced based on their publication in the authentic electronic version of the Official Journal of the European Union .
The proposal is fully in line with the policies of the Union and in particular with the flagship initiative ‘A Digital Agenda for Europe’[4] presented in the context of the EUROPE 2020 strategy for smart, sustainable and inclusive growth. The Digital Agenda aims at maximising the economic and social benefits of information technologies and highlights the role of public authorities in promoting the digital market. Within this context, access to online legal content stimulates the development of the digital single market since the public sector information thus made available would lead to the setting-up of innovative online services.
The proposal is also consistent with the objectives of the European eGovernment Action Plan 2011-2015 i, according to which Member States and the Commission should provide online access to information on government laws and regulations, policies and finances.
Consultation of the interested parties
European institutions and bodies are represented in the Management Committee of the Publications Office, which is responsible for overseeing the strategic development of the Publications Office’s activity. Within this forum, the interested institutions and bodies have considered the matter and expressed their support for establishing an authentic electronic edition of the Official Journal of the European Union .
Member States have also been consulted on the question of legally valid electronic publication of the Official Journal of the European Union through the Council’s e-Law Working Party. The Secretariat General of the Commission transmitted a non-paper to the Council on 30 July 2010 which was discussed at two meetings of the e-Law Working Party on 21 September and 26 October 2010. The Member States’ comments showed strong support for a legally valid electronic publication i, but were more divided with regard to the continued legal value of the paper version; observations were made regarding:
- Opting for exclusively electronic publication of the Official Journal of the European Union , possibly preceded by a transitional period of parallel publishing on paper and in electronic form;
- The cost of printing the Official Journal of the European Union , in the event of opting for parallel dissemination through printed and electronic editions;
- The risk of discrepancies between the printed and electronic editions and the need to establish clear rules on handling inconsistencies or on the prevailing version;
- The limited role the printed edition may play in disseminating EU legislation to people who would not have the means to access the electronic edition.
In preparing this proposal the Commission has taken into consideration all the comments expressed. Initially, parallel publication on paper and in electronic form, which would have equal legal force, was preferred, since it was considered to secure the broadest possible access to EU law for European citizens. However, the practical experience of the Member States suggested that the benefits would be marginal and would not offset the increased complexity. It was also pointed out that people living in geographically less accessible areas experience difficulties or delays in getting a printed edition and that their access to EU law would be facilitated by an authentic electronic edition .
The proposal for a Regulation provides that the Official Journal of the European Union is to be published in an electronic form that produces legal effects. An electronic publication is consistent with the target set by the Europe 2020 Strategy and the flagship initiative A Digital Agenda for Europe, according to which broadband access should be ensured for all by 2013. The proposed system balances the concerns for both accessibility and simplicity:
- On the one hand, the valid electronic publication allows for broader dissemination than the printed edition. During the last few years, there has been an observable drop in the number of subscriptions for the Official Journal of the European Union, while Internet usage in the European Union has been expanding - according to Eurostat, 70% of households in 2010 and 94% of enterprises in 2009 had access to Internet. Furthermore, consultation of the electronic edition of the Official Journal of the European Union would be free of charge and would compare favourably with the printed publication, for which printing and shipping costs had to be levied from the public. Nonetheless, a safeguard is provided for people with disabilities who can access the Official Journal of the European Union in a specific electronic format and for persons who cannot, for any other reason, access the electronic publication, as it will always be possible to obtain a paper version ‘on demand’ but without legal value (i.e. for information purposes only) either through the Publications Office or as a print-out from the Internet.
- On the other hand, the system is simpler since potentially complex rules on handling discrepancies between equally authentic printed and electronic editions are no longer required.
An analysis has been conducted by the Commission to assess three options with regard to publication of the Official Journal of the European Union :
- Option 1: Maintaining the status quo, where only the paper version constitutes valid publication and the online version of the Official Journal of the European Union serves for information purposes only;
- Option 2: exclusive online publication of the Official Journal of the European Union ;
- Option 3: simultaneous publication on paper and online that would have equal legal value and effectiveness.
Providing for the legal value of the electronic edition will have significant benefits, as:
- access to EU legislation is broadened, made easier and immediate;
- access to the electronic edition is free of charge and possible at any time;
- such electronic publication would be in line with the Digital Agenda priorities agreed among the EU institutions and would stimulate an increase in take-up of online services.
Contents
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATIONS
- General context
- Existing provisions in the area of the proposal
- Objectives of the proposal
- Consistency with other policies and objectives of the Union
- RESULTS OF INFORMAL CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- Assessment of the likely impact of the proposal
- Main provisions of the proposal
- Legal basis
- Proportionality principle
- Choice of instruments
The proposal provides that electronic publication would equate to valid publication of the Official Journal of the European Union . However, the printed edition would suffice to ensure the legal effects of publication in technically-driven exceptional and temporary cases of unforeseen disruption of electronic publication (e.g. cyber-attacks, unforeseen equipment malfunctions) that last for more than one day. The edition of the Official Journal of the European Union printed in such circumstances is to be published in electronic form as soon as the technical system is restored. The printed edition is to provide the date of publication, but the subsequent electronic edition would prevail in case of differences.
The proposal also deals with the technical requirements whereby electronic publication equates to valid publication and establishes the competences of the Publications Office in this area.
Article 352 of the Treaty on the Functioning of the European Union.
The proposal’s scope is limited to electronic publication of the Official Journal of the European Union and the technical conditions under which it can equate to valid publication.
A Regulation is the only appropriate instrument as it is directly applicable in all Member States. European citizens should have equal access to EU law and therefore access to the electronic edition of the Official Journal of the European Union should be ensured in the same manner and under the same conditions for all European citizens.
Providing for legally valid publication of the Official Journal of the European Union in electronic form has no budgetary implication.
However, the technical infrastructure supporting electronic publication requires IT-related investments. Under the administrative autonomy, expenditure of EUR 38 000 was incurred in 2009 for setting up and testing the technical system prior to the publication of the Official Journal of the European Union in electronic form as authentic. Further development investments and the maintenance and system-running costs are to be borne by all institutions since the obligation to publish legislative texts rests with them. The method for calculation of the repartition key is based on the number of OJ L and C pages produced for each institution in year n-2. The key for 2011 has been set up on the basis of the 2009 figures:
- European Commission: 47.64%;
- Council of the European Union: 21.96%;
- European Parliament: 21.94%;
- Economic and Social Committee: 3.29%;
- Court of Justice of the European Union: 3.17%;
- Court of Auditors: 1.25%;
- Committee of the Regions: 0.75%.
Budgetary provisions to be made in line with this repartition key.