The context
Over the past twenty years, the role of public data re-use has progressively evolved. Initially developed in a context in which opening up public information was closely linked to the need for transparency and public scrutiny of administrative action, re-use is now increasingly regarded also as a tool for innovation, economic growth and the development of new services. In general terms, “re-use” refers to the further use of data acquired or generated in the performance of public functions for purposes other than those for which they were originally collected or generated. It is precisely this possibility of giving data a “second life” that makes re-use particularly attractive to businesses: information collected to perform a public task can become a raw material for applications, services, research activities or business initiatives.
There are now numerous examples. Public data can be combined to develop tools that help identify employment opportunities accessible by public transport, platforms that make financial statements easier to understand, applications for monitoring air quality, or projects that use satellite data and open data to identify deforestation. The point, therefore, is not merely to make data accessible. The challenge is to create the conditions under which data can actually be found, understood, combined and re-used. It is at this stage that the issue of re-use moves beyond the sphere of mere transparency and into the broader field of the data economy: public information assets become a resource capable of generating social and economic value without losing their original public character.
This evolution has been accompanied by the progressive expansion of the European regulatory framework: from Directive 2003/98/EC of the European Parliament and of the Council of 17 November 2003 on the re-use of public sector information, subsequently amended by Directive 2013/37/EU of the European Parliament and of the Council of 26 June 2013, to Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information, and Regulation (EU) 2022/868 of the European Parliament and of the Council of 30 May 2022 on European data governance and amending Regulation (EU) 2018/1724 (Data Governance Act).
What changes with the Digital Omnibus?
The proposal starts from a relatively straightforward premise: in recent years, the European Union has developed a regulatory framework for the data economy through a plurality of legislative instruments, each addressing specific aspects of data circulation. This regulatory layering has created new rights and new data-sharing mechanisms, but it has also resulted in overlaps, compliance costs and difficulties in applying the rules for both public administrations and businesses. The Digital Omnibus seeks to address this issue through a consolidation exercise. In particular, the proposal provides for the rules of the Open Data Directive and those of the Data Governance Act concerning the re-use of certain categories of protected data to be incorporated into the Data Act. The latter would thus become the main framework for the European rules governing access to, sharing and re-use of data in the digital economy.
With regard to the re-use of data held by public-sector bodies, the change is not merely editorial: the proposal establishes a new, unified chapter within the Data Act, bringing together rules that currently fall under two separate regimes: on the one hand, open government data, traditionally governed by the Open Data Directive; on the other, certain categories of protected data, currently governed by the Data Governance Act.
The new framework maintains an important distinction between the two categories. For open data, the general principle of re-usability remains in place, subject to the limitations laid down by the applicable rules. For certain categories of protected data, by contrast, no general obligation is imposed on public administrations to permit re-use: instead, minimum conditions are established for cases in which a public-sector body decides to make such data available. Alongside the relocation of the existing rules, however, the proposal also introduces new elements. It extends and harmonises common principles, such as non-discrimination, the prohibition of exclusive arrangements and certain rules on fees. Most importantly, it allows public bodies to impose specific conditions and higher fees for re-use by very large businesses and, in particular, by gatekeepers designated under the Digital Markets Act, provided that such conditions are proportionate and based on objective criteria.
This is a significant development because it shows that re-use is no longer viewed solely in terms of the indiscriminate opening up of public information assets. The regulatory framework is beginning to take into account the economic position of the re-user and the risk that entities with significant market power could appropriate, on the same terms applicable to smaller operators, the value generated by data collected by the public sector. In other words, the question is no longer simply whether public data can be re-used, but also under what conditions, by whom and with what effects on the market. This is where the data economy perspective becomes particularly evident. The Digital Omnibus on data therefore appears to seek a balance between two objectives: simplifying access to public information assets while, at the same time, governing their economic use in a market characterised by significant asymmetries between market participants.
This approach does not, of course, eliminate the traditional limitations on re-use. The protection of personal data, intellectual property rights, trade secrets and other protected interests continue to affect both the possibility of making data available and the conditions governing their subsequent use.
The issue of personal data
The relationship between re-use and the protection of personal data remains one of the most sensitive aspects. The very concept of re-use presupposes that information collected for a specific purpose may also be used for additional purposes. The GDPR, by contrast, bases an essential part of its regulatory framework on the principle of purpose limitation and on the need to assess the compatibility of subsequent uses. The tension is clear: open-data policies seek to make information available precisely so that it can be used in ways that may not have been foreseeable at the time of collection, whereas data protection rules require that further processing not be incompatible with the original purpose and that the other safeguards laid down by the Regulation be respected. This means that accessibility and re-usability are not synonymous. The fact that information is publicly accessible does not, in itself, mean that it may be freely used for any purpose. The assessment of the re-use of personal data therefore continues to require an approach based on accountability, an appropriate legal basis, compatibility of purposes and, where necessary, measures such as anonymisation or pseudonymisation.
Within the framework of the Digital Omnibus, this issue assumes even greater significance because the proposal also affects the definition of personal data, placing greater emphasis on the contextual dimension of identifiability. In practical terms, the same information could constitute personal data for one party that has reasonable means of linking it to a natural person, while not constituting personal data for another party that does not have access to such means. If this approach were retained in the final text, the implications for re-use could be significant. Whether data qualify as personal data would not be an immutable characteristic of the information itself, but would also depend on the recipient and the resources available to that recipient. For public administrations, this could mean the need to assess even more carefully who the re-user is, what additional data that party could reasonably use, and what safeguards are necessary to prevent re-identification.
The result is a framework in which regulatory simplification does not necessarily translate into a simplification of the practical assessments required. Bringing multiple regulatory regimes together within the Data Act may make the system easier to understand, but it does not eliminate the need to balance data openness, the protection of individuals and the safeguarding of the other interests involved.
The shift in values underway: what opportunities for businesses?
The question raised in the title can be translated into very concrete terms: are data held by public administrations increasingly becoming a resource that businesses can also use? The answer is yes, but with some important qualifications. Transparency continues to be a fundamental function of making public data available. Much of this information is published to enable citizens to understand and scrutinise the activities of public administrations and, in the Italian system, a significant proportion of re-usable data derives precisely from the publication obligations established by Legislative Decree No. 33/2013 or from access mechanisms.
Alongside this traditional function, however, a second perspective is becoming increasingly prominent: public data can become a resource for developing new services, products and business models. This is the aspect of greatest interest to businesses. Data relating, for example, to mobility, land and territory, the environment, energy, public procurement, economic activities or public services can be used to develop applications, digital services, analytical tools or artificial-intelligence-based solutions.
The proposed Digital Omnibus on data appears to reinforce this trend. Incorporating the rules on re-use into the broader framework of the Data Act brings data held by the public sector even closer to the European rules governing the circulation and sharing of data within the economy.
For businesses, this means that the information assets held by public administrations should no longer be viewed merely as something to consult, but increasingly also as a potential source of data to be integrated into their own activities. The change is above all cultural and systemic: public administrations are no longer merely entities that collect and publish information, but also actors within the European data ecosystem. Naturally, not all public data can be freely used. The limitations relating to the protection of personal data, intellectual property and security remain central.
For businesses, however, the overall direction is clear: understanding what data are available, under what conditions they can be re-used, and through which mechanisms they can be obtained is becoming increasingly important from a competitive standpoint as well. The re-use of public data is increasingly being recognised for its economic function. This creates a genuine opportunity for businesses, which may transform data already collected by the public sector, through re-use, into new services, knowledge and innovation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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