Explanatory Memorandum to 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.
source COM(2023)402
date 10-07-2023


1. CONTEXT OF THE PROPOSAL

• Reasons for and objectives of the proposal

Since 1953 along with the evolution of the European Union, European statistics have played an increasingly important role for underpinning the EU activities, policies and legislative acts, from their design and implementation to their monitoring and evaluation.

The current legal framework governing European statistics is Regulation (EC) No 223/2009 that was adopted by the European Parliament and the Council in 2009. It was revised in 2015 to strengthen the overall governance of the European Statistical System (ESS) and, notably, its professional independence. Since then, this strengthened governance has proved to be effective.

The recent financial, migration and Covid-19 crises followed by the Russian military aggression against Ukraine have, however, amplified demands for and expectations of timelier and more detailed European statistics, needed to inform EU decision-making and ensure the best possible EU response to crises. In the recent past, the EU has undertaken several legislative initiatives to build comprehensive crisis-response mechanisms through proposals such as the Civil Protection mechanism, the European Health Emergency Preparedness and Response Authority (HERA), the Market Correction Mechanism, or the Single Market Emergency Instrument (SMEI).

At the same time, the ESS operates in a context driven by profound digital transformation that have created new information needs alongside the emergence of many digital data sources. These sources are ready to be tapped and can help generate European statistics that can meet these needs in a more efficient, extensive, and timelier manner. This can, in turn, increase economic growth, spur innovation, support democratic accountability and the overall well-being of society.

As a result, users’ expectations of European statistics have changed, with increasing demands for more detailed information, produced more quickly, at a higher frequency and offering more in-depth insights in support of evidence-based EU policies. New data protection rules under the General Data Protection Regulation (GDPR), as well as new privacy protection parameters, have also become key parts of this new environment. With current production methods for European statistics limited to traditional data sources (e.g., surveys and administrative records), these increasing demands have become difficult, if not impossible, to meet, even with additional resources having been allocated to statistical authorities.

The general objective of this proposal is therefore to make the legal framework governing European statistics fit for the future and significantly improve the responsiveness of the ESS to data needs. The ESS will be able to produce statistics that are more relevant, available more promptly, and more detailed. This will improve efficiency and reduce the costs and burdens on the Member States and survey respondents. This initiative also seeks to provide a mechanism and tools for the ESS to react swiftly and in a collective and coordinated manner, to urgent data demands in times of crises.

More specifically, the proposal seeks to allow statistical authorities to tap the full potential of digital data sources and technologies by enabling their reuse for European statistics. The proposal will help make the ESS more efficient and effective by promoting data sharing and strengthening its coordination; strictly preserve statistical confidentiality and data privacy; update the tasks of ESS partners; outline possible roles for using opportunities offered by digital transformation for more cost-efficient and less burdensome statistical production, and specify new functions that statistical authorities could perform in the emerging European and national data ecosystems, while complying fully with the subsidiarity principle.

• Consistency with existing policy provisions in the policy area

The proposal is fully consistent with existing provisions in EU legislation on statistics.

• Consistency with other EU policies

This proposal is consistent with existing rules on:

- processing of personal data (including the General Data Protection Regulation, (GDPR));

- strengthened mechanisms to increase data availability (the Data Governance Act);

- the general approach for making data available to public sector bodies in situations of exceptional need as foreseen in the Data Act proposal currently under discussion;

- protecting privacy and the confidentiality of communications, as well as any (personal or non-personal) data stored in and accessed from terminal equipment (this is the ePrivacy Directive, which will be replaced by the ePrivacy Regulation that is currently being negotiated between the European Parliament and the Council).

2. LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY

• Legal basis

The legal basis for this proposal is Article 338(1) of the Treaty on the functioning of the European Union (TFEU). Acting in accordance with the ordinary legislative procedure, the European Parliament and the Council adopt measures for the production of statistics where necessary for the performance of the activities of the Union.

Furthermore, Article 338(2) TFEU sets out the requirements for producing European statistics, stating that they must conform to standards of impartiality, reliability, objectivity, scientific independence, cost-effectiveness and statistical confidentiality without putting an excessive burden on economic operators.

• Subsidiarity (for non-exclusive competence)

The subsidiarity principle applies because the proposal does not fall within the exclusive competence of the EU. This means that the EU only acts because this would be more effective than action taken at national, regional or local level.

For the ESS to be able to produce more relevant, timelier and more detailed European statistics, legal provisions at EU level are needed to make new data sources available to the national statistical institutes (NSIs) and the Commission (Eurostat), so they can compile European statistics in a sustainable manner.

Currently, where Member States allow privately held data to be re-used for official statistics, the conditions and safeguards differ across Member States. A harmonised approach at EU level would bring legal clarity and ensure fair treatment for private data holders who are active in multiple Member States.

For the ESS to be responsive to crises, specific references should be introduced in the overall legislative framework governing European statistics that will allow swift reaction at EU level and will also ensure that the statistical response is consistent across Member States. The proposed response mechanism would improve effectiveness through strengthened statistical coordination, while respecting the remit and responsibilities of the national statistical authorities. Moreover, it could be used in addition to existing EU crisis response instruments with the objective of ensuring timely and relevant statistics for evidence-based decision-making within those instruments.

To reduce the burden on businesses and citizens and increase efficiency and quality, the processes within the ESS need to be optimised. These processes include data collection and data sharing arrangements related to phenomena that occur in more than one Member State such as multinationals’ activities.

Without further legislative action at EU level, the problems that have developed will continue and may gradually worsen considering the increased digitalisation of society and changes in users’ demand.

The EU may therefore adopt the proposed measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty.

• Proportionality

The proposal complies with the proportionality principle as described below.

The initiative aims to make the ESS fit for the future. It has been assessed to be suitable for this purpose , resulting in total benefits to society that are considerably higher than the total costs, as demonstrated by the impact assessment. Procedural safeguards ensure that proportionality is applied at all stages of implementating the revised Regulation (EC) No 223/2009.

The initiative is proportional because it only addresses existing barriers to compiling timelier and more detailed European statistics. It also involves and relies on the work of the national authorities and consolidates the strong involvement of relevant stakeholders within the ESS. The preferred policy option does not exceed what is necessary to achieve the objectives of the Treaties.

• Choice of instrument

Given that the subject matter of the proposal is already covered by a regulation, that this proposal will amend, the most appropriate instrument is a regulation.

3. RESULTS OF EX-POST EVALUATIONS, STAKEHOLDER CONSULTATIONS AND IMPACT ASSESSMENTS

• Stakeholder consultations

In preparing this proposal, stakeholders were consulted in various ways. The public consultation collected views from stakeholders on options to ensure that European statistics will be fit for the future. Feedback was received from various stakeholder groups. Their views can be found in detail in the annex to the impact assessment staff working document.

A public consultation was conducted from 19 July to 25 October 20221. In total, 204 valid responses were received. Respondents expressed support for action at EU level to make digital data held by the private sector available to produce European official statistics, since 83% of the respondents considered this being of very high or high importance. 11% of the respondents considered that European official statistics are sufficiently responsive to emerging user demand, including during public emergencies and crises, whereas 72% considered them somewhat responsive, but not enough. As regards purposes for which easier and more systematic data sharing between statistics authorities would be helpful within the European Statistical System, 72% of respondents considered it helpful to reduce the response burden and allow for re-use of already collected data. Finally, 85% of the respondents, agreed or strongly agreed that Statistics authorities should provide professional advice to organisations within their ecosystem on issues related to data and data processing, such as quality, data re-use, intellectual property, confidentiality, security and metadata.

Stakeholder views were also collected through the “Study to support an Impact Assessment for the revision of Regulation (EC) No. 223/2009 on European Statistics”, which based itself on material such as stakeholder interviews carried out between October and November 2022, an online survey (run from 5 October to 7 November 2022), and an online stakeholder workshop carried out on 8 November 2022.

In conclusion, users and producers of European statistics expressed support for reviewing Regulation (EC) No 223/2009 along the lines of this proposal, although statistics producers (i.e. the partners of the ESS) noted the budget consequences. The general public were also supportive, given the significant benefits for society, but since the private sector data to be reused for European statistics may to some extent be personal data, they requested strong confidentiality safeguards, although they recognised that the ESS already provides very solid safeguards regarding confidentiality.

Businesses, in their role as data holders, may incur costs and as such they considered it essential to respect their interests. But they were open to the preferred option, provided that a fair solution could be found to the issue of cost compensation. The possible reduction of the burden on businesses and households by the replacement of surveys through the use of new data sources is appreciated by all.

Finally, for years the ESS has repeatedly called for the issue of access to privately held data for statistical purposes to be addressed at European level. This started with the ESS position paper on access to privately held data which are of public interest of November 20172 and more recently with the ESS position paper on the future Data Act proposal3.

• Collection and use of expertise

The proposal was supported by several documents, studies, recommendations, conferences and other expert inputs, including:

- Report by the Expert Group on facilitating the use of new data sources for official statistics: Empowering society by reusing privately-held data for official statistics – a European approach4;

- Study to support an Impact Assessment for the revision of Regulation (EC) No. 223/2009 on European Statistics;

- High-level meeting organised organised by the French Presidency in Lyon on 7-8 April 2022 on ‘Making the European Statistical System fit for the future’;

- Meeting of the Presidents and Directors-general of the NSIs of the ESS in Luxembourg on 18 May 2022 to further discuss two specific topics: sustainable access to privately held data and data sharing in the ESS for producing European statistics.

• Impact assessment

The proposal is accompanied by an impact assessment that was submitted to the European Commission’s Regulatory Scrutiny Board on 14 December 2022 and 6 March 2023. On 27 March 2023, the Board issued a positive opinion with reservations. In addition to a dynamic baseline option (PO0) that takes into account the larger European Data Strategy and entails no revision of Regulation (EC) No 223/2009, two other legislative options were assessed: (PO1) that introduces legislative measures of low intensity; and option (PO2) that introduces more thorough legislative measures, imposing obligations on the data holders and on the national statistical authorities of the Member States. For each policy option several specific policy measures were defined.

The comparative assessment of the three policy options showed that the baseline option (PO0) has the least desirable outcome in terms of effectiveness, efficiency, and coherence, and the first policy option (PO1) the most desirable, with the second policy option in between. This is true for each of the specific goals. PO1 is less effective but more efficient and coherent than PO2. Moreover, it is also more feasible and supported by stakeholders. This clearly points to choosing PO1 as the preferred option.

Contents

1.

The preferred option covers measures which will


(i) ensure sustainable and fair use of digital data sources for European statistics by establishing a mechanism whereby private data holders can be required on a mandatory basis to enable the reuse of the data they hold for the purpose of developing and producing such statistics;

(ii) allow to initiate statistical actions conducted directly at EU level in response to crisis and extraordinary circumstances;

(iii) mandate data sharing among the partners of the ESS for statistical purposes where relevant and justified;

(iv) allow the Commission (Eurostat) to share data with the NSIs via a secure infrastructure; and

(v) enable the NSIs to assume data governance in their respective data ecosystems, thereby enhancing data interoperability and standardisation.

• Fundamental rights

The impact assessment has not identified any potential direct impacts on fundamental rights. The only fundamental right that may be indirectly at stake is data protection when promoting data sharing and strengthening coordination within ESS. However, such enhanced data sharing will be organised while strictly preserving statistical confidentiality and data privacy. Any processing of personal data in accordance with this Regulation will comply with all conditions and rules provided by data protection legislation, such as the Regulation (EU) 2016/6795 and Regulation (EU) 2018/17256.

4. BUDGETARY IMPLICATIONS

The proposal has no budgetary implications.

5. OTHER ELEMENTS

• Implementation plans and monitoring, evaluation and reporting arrangements

The proposed regulation is expected to be adopted by the European Parliament and the Council in 2024, with the Commission’s implementing measures to be adopted shortly after that. The regulation will be directly applicable in all EU Member States without any need for an implementation plan.

In line with the impact assessment, the implementation of the adopted regulation will be monitored and evaluated regularly. The impact assessment also contains monitoring arrangements including proposals for indicators to be used.

• Detailed explanation of the specific provisions of the proposal

2.

Introducing new key definitions or adapting existing ones (proposal to amend Article 3)


It is proposed to introduce a new definition of “multi-source statistics” to reflect the fact that European statistics can be compiled using a combination of different data sources. This will enable statistical authorities to seek the most relevant and cost-effective mix of primary data sources for the development and production of various European official statistics.

To better reflect the realities of the digital age in which the ESS operates, it is also proposed to introduce new definitions such as ‘data’, ‘metadata’, ‘data holders’, ‘data sharing’ and ‘data source’. The existing definition of ‘statistical purposes’ also needs to be adapted so that research activities carried out by statistical authorities, or the establishment of sampling frames explicitly become part of such statistical purposes.

3.

Increasing the capacity of the ESS to react swiftly and in a collective and coordinated manner to urgent data demands in times of crisis (proposal for a new Article 16a)


In general, demands for more detailed and timelier, often close to real time official statistics are increasing but the ability to meet those demands is especially crucial in times of crisis, as lately experienced during the Covid-19 pandemic and the energy crisis triggered by the Russian military aggression against Ukraine. Within the usual planning cycle, the incubation time for a new statistic typically covers several years, but if the demand is urgent and important, a fast-track solution is needed with appropriate safeguards for all partners and for the quality and harmonisation of the resulting statistical information. The ESS needs to be able to react quicker or innovate proactively to respond with European statistics to such exceptional and unplanned political demands that cannot be met under the implementation of the European statistical programme’s 7-year programming timeline. The possibility for the Commission to adopt specific actions to implement the European statistical programme in accordance with Article 14(2) of Regulation (EC) No. 223/2009 is therefore not sufficient.

A new provision is thus proposed that provides for possible statistical actions at European level to meet urgent information needs arising in times of crisis and following emergency mechanisms activated in accordance with procedures established by Union law.

In such situations, the Commission (Eurostat) should examine temporary statistical actions to be initiated and conducted at European level, in close collaboration with the ESS Committee. The benefit for political stakeholders and policymakers of such enhanced immediate responsiveness within the ESS would be to receive in sufficiently timely manner statistical outputs and insights that are comparable across the EU Member States.

These statistical actions can comprise the production of statistics based on new temporary data collections, or the provision of additional insights based on existing data. The actions can also include development new methodologies and other coordinated measures aimed at ensuring continuity, consistency and comparability of European statistics delivered in times of crises.

In identifying the need for a statistical action, the Commission (Eurostat) must inform and consult the ESS Committee in a timely and transparent manner. NSIs may decide to join and participate in the statistical actions. The Commission should also be empowered to adopt implementing acts that specify the relevant timespan, frequency and quality requirements for these statistical actions.

Moreover, it could be used in parallel with already existing EU crisis response instruments with the objective of ensuring timely and relevant statistics for evidence-based decision-making within those instruments.

4.

Strengthening timely access to administrative data for European statistics (proposal to amend Article 17a)


It is proposed to strengthen the requirement that the 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 authorities7 to access, reuse and integrate administrative data free of charge in time and frequency sufficient to produce and submit statistics to the Commission (Eurostat) within the deadlines and in line with quality requirements defined in statistical legislation.

In addition, a refinement and clarification is introduced that the Commission (Eurostat) shall be allowed, upon request, to access and reuse in a timely manner relevant data and metadata from databases and interoperability systems maintained by Union bodies and agencies, when it is necessary for the development, production and dissemination of European statistics. 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.

5.

Ensuring sustainable access to privately held data that emerge as a by-product of digital services and the Internet of Things for European statistics (proposal for new Articles 17b, 17c, 17d and 17e)


In the new Articles 17b, 17c, 17d and 17e, in Chapter III on ‘Production of European statistics’, it is proposed to introduce an obligation for private data holders to make data available, on request, to the NSIs or the Commission (Eurostat), under certain conditions. The proposed mechanism represents a proportionate, limited and predictable framework at European level that is both effective in making these data available for the production of European statistics and, at the same time, ensures legal certainty and minimises the response burden on businesses. This mechanism is however without prejudice to the reporting obligations upon statistical respondents laid down in sectoral legislation, nor to the obligation for data holders to make data available based on exceptional needs in accordance with the Data Act8.

A two-stage level justification procedure is envisaged by the proposal, whereby the need to access a new data source will have to be established first at the level of an annual work programme of European Statistics. The justification in the annual work programme would be a pre-condition for the second stage when the NSIs or the Commission (Eurostat) will effectively submit individual requests to private data holders to make some data available for the compilation of certain statistics (within the scope of the first-stage justification). Such requests will need to be commensurate with the statistical needs, clearly indicate the purpose of the request and respect the interests of the private data holder requested to make the data available.

While NSIs will be the primary points of access to privately held data for compiling European statistics, the Commission (Eurostat) may in some cases be better placed to be the first access point to data from businesses. This particularly applies to domains where an ESS data collection approach could be more effective such as when data is held by companies operating at a Union wide scale. Furthermore, the proposal aims to establish an obligation of cooperation and mutual assistance between NSIs in order to avoid excessive requests on private data holders and to ensure a data minimisation approach.

The Commission should be granted the power to specify by means of implementing acts, the arrangements for making the data available, such as the data format, the meta-data requirements, a common template to be used when submitting a request or the actual way for accessing the data with the obligation to make data available clearly covering different possibilities, including the transmission of data, the use of a secure computation framework of a third party or the sending of an algorithm to the private data holder.

The provisions specify obligations for the NSIs and the Commission (Eurostat) when reusing data made available for the development and production of European statistics. In particular, the NSIs and the Commission (Eurostat) should use this data exclusively for statistical purposes in conformity with principles of statistical confidentiality and cost-effectiveness and shall not share them with third parties unless the data holder has agreed. In addition, the NSIs and the Commission (Eurostat) shall take appropriate measures to protect statistical confidentiality and trade secrets as well as to preserve other legitimate concerns of private data holders including the cost and effort required to make the data available. 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 as well as the methodology for calculating these costs.

6.

Fostering data sharing within the ESS (proposal for a new Article 17f)


It is proposed to introduce into the current Chapter III on ‘Production of European statistics’ new provisions on data sharing between NSIs and between NSIs and the Commission (Eurostat), exclusively for the purpose of developing and producing European statistics, and for improving their quality, where relevant and necessary. For instance, in cases such as the observation of cross-border phenomena which cannot be measured as a sum of national estimates.

Data sharing is regarded as a way to increase access to data sources within the ESS for both statistical development and production and to support data analysis purposes. NSIs and the Commission (Eurostat) participating in the data sharing within the ESS shall provide all necessary safeguards regarding the physical and logical protection of data confidentiality. Data sharing should be facilitated by the use of a secure infrastructure, that ensures the technical integrity and confidentiality of data processing.

When the data concerned is confidential data within the meaning of Article 3 of this Regulation or personal data according to Regulations (EU) 2016/679 and (EU) 2018/1725, the sharing of such data shall be allowed and may take place on a voluntary basis, based on privacy enhancing technologies.

Development of European statistics (proposal for a new Chapter IIIa on ‘Development of European statistics’ with a new Article 17g)

The proposal introduces a new Chapter IIIa on ‘Development of European statistics’ addressing the issue of statistics under development, sometimes referred to as “experimental statistics”. The objective is to create a framework under which European statistics can be developed in specific areas as part of a collective effort by the ESS, thereby integrating new technologies and new insights progressively. The Commission (Eurostat) may initiate, in close collaboration with the ESS Committee, the development of new statistical outputs and insights in a coordinated manner across the ESS.

7.

Dissemination of European statistics (proposal for a new paragraph 4 in Article 18)


It is proposed to benefit from the fact that Member States will sometimes publish European statistics at national level ahead of the transmission deadlines set out in the relevant sectoral legislation. Once these data is published, the Commission (Eurostat) should be able to disseminate that same data immediately afterwards and thereby contribute to increased timeliness at European level, as long as they respect relevant definitions and classification.

8.

Reuse of publicly available data (proposal for a modified Article 25)


To ensure a more efficient use of publicly available data, it is proposed to amend the wording of Article 25.

9.

New functions of NSIs in the national data governance frameworks (proposal for a new Article 26a)


It is also proposed that, in compliance with the principle of subsidiarity, NSIs may assume at national level functions in the national data governance frameworks including those foreseen in the Data Governance Act, with the objective to promote data integration and inter-operability, metadata description, quality assurance and standards-setting and identify new data sources to be used for statistics under development. These functions must be implemented in accordance with the statistical principles laid down in this Regulation.

10.

Evaluation and review clause (proposal for a new Article 27a)


In line with the agreement on Better Law-making between the European Parliament, the Council and the Commission it is proposed to insert a review clause.