–

the Povjerenik za informiranje, by Z. Pičuljan, acting as Agent,

–

the Croatian Government, by G. Vidović Mesarek, acting as Agent,

–

the Czech Government, by J. Očková, M. Smolek and J. Vláčil, acting as Agents,

–

the Austrian Government, by A. Posch and J. Schmoll, acting as Agents,

–

the European Commission, by U. Małecka, M. Mataija and G. Meessen, acting as Agents,

1

This request for a preliminary ruling concerns the interpretation of Article 1(2) and Article 2 of 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 (OJ 2019 L 172, p. 56).

2

The request was made in proceedings between HP – Hrvatska pošta d.d. (‘HP’) and the Povjerenik za informiranje (Information Commissioner, Croatia) concerning a request for information made to HP, seeking, inter alia, disclosure of construction contracts, interim payment certificates, and declarations of transfer and acceptance of works.

3

Recitals 9, 13, 23 and 70 of Directive 2019/1024 state:

…

…

…

4

Article 1 of that directive, entitled ‘Subject matter and scope’, provides:

‘1.   In order to promote the use of open data and stimulate innovation in products and services, this Directive establishes a set of minimum rules governing the re-use and the practical arrangements for facilitating the re-use of:

2.   This Directive does not apply to:

…

…

…

…

3.   This Directive builds on, and is without prejudice to, Union and national access regimes.

…

7.   This Directive governs the re-use of existing documents held by public sector bodies and public undertakings of the Member States …’

5

Article 2 of Directive 2019/1024, entitled ‘Definitions’, is worded as follows:

‘For the purpose of this Directive the following definitions apply:

…

…

…’

6

Article 5 of the zakon o pravu na pristup informacijama (Law on the right of access to information) (Narodne novine, br. 25/13, 85/15 and 69/22; ‘Law on the right of access to information’) provides:

‘The individual terms in this Law shall have the following meaning:

…

…

…’

7

Article 15 of that law, which appears in Chapter IV thereof, entitled ‘Restrictions on the right of access to information’, provides:

‘…

(2)   Public authorities may restrict access to information:

…

…

(4)   Public authorities may restrict access to information if:

…

…’

8

Under Article 27 of the Law on the right of access to information, which forms part of Chapter VI thereof, entitled ‘Re-use of information’:

‘…

…

…’

9

Article 29 of the Law on the right of access to information, entitled ‘Request for re-use of information and protection of users’ rights’, provides:

‘(1)   In a request for the re-use of information, the applicant must, in addition to the data referred to in Article 18(3) of this Law, state the information he or she wishes to re-use, the form and manner in which he or she wishes to receive the content of the requested information, and also the purpose of the use of the information (commercial or non-commercial purpose).

(2)   The following entities shall not be obliged to act in accordance with a request for re-use of information:

…

…

(7)   An appeal against a decision on the re-use of information may be lodged with the [Information] Commissioner within 15 days of the delivery of the decision. Orders made by the [Information] Commissioner shall not be open to appeal, but administrative court proceedings may be initiated before the Visoki upravni sud [(High Administrative Court, Croatia)].

…’

10

HP, a company 100% owned by the Republic of Croatia, is the universal postal service provider in that Member State. It also carries on commercial activities.

11

HP received a request for information concerning, inter alia, construction contracts, interim payment certificates, and declarations of transfer and acceptance of works.

12

As that request was refused by HP, an appeal against that refusal decision was brought before the Information Commissioner who ordered HP to comply with that request.

13

HP brought an action against the Information Commissioner’s order and the Visoki upravni sud (High Administrative Court) referred the case back to that body for reconsideration on the grounds that, as at the date on which the Information Commissioner issued the order, the time limit for transposing Directive 2019/1024 had expired and that the obligation to disclose imposed on HP by that commissioner should be examined in the light of the new definitions and exceptions provided for by that directive.

14

Ruling on the referral back, the Information Commissioner again ordered HP to provide the requested information.

15

HP brought an action against that order before the Visoki upravni sud (High Administrative Court), which is the referring court.

16

In support of its action, HP submits, inter alia, that Directive 2019/1024 has been incorrectly transposed into Croatian law, in that the concept of ‘public authority’, within the meaning of the Law on the right of access to information, does not have the same scope as the concept of ‘public undertaking’ within the meaning of Article 2(3) of that directive. Furthermore, it submits that the definition of that concept in Directive 2019/1024 applies both to the re-use of information and to the right of access to information. HP claims, lastly, that the information which it was ordered to produce is linked to its sectoral activity and that it constitutes business secrets.

17

The Information Commissioner submits, for its part, that the dispute in the main proceedings does not concern the exercise of the right to re-use information, but that of the right of access to information; it claims that Directive 2019/1024 governs open data and the re-use of public sector information, not the right of access to information.

18

The referring court considers that, in order to resolve the dispute before it, it must decide whether HP was required to disclose, in the main proceedings, information not directly related to the provision of services of general interest, which would entail, in particular, determining the scope of the concept of ‘re-use’ of information, within the meaning of Directive 2019/1024.

19

In those circumstances the Visoki upravni sud (High Administrative Court) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:

20

By order of the President of the Court of 27 July 2023, HP – Hrvatska pošta (C‑336/23, EU:C:2023:617), the request from the Visoki upravni sud (High Administrative Court) for the present case to be determined pursuant to the expedited procedure provided for in Article 105 of the Rules of Procedure of the Court of Justice was refused.

21

As a preliminary point, it should be noted, first, that it is apparent from the order for reference that the request giving rise to the dispute in the main proceedings, referred to in paragraph 11 above, concerned solely access to documents held by a public sector body, without pertaining to the re-use of those documents.

22

Second, it is apparent from that order for reference that, according to the referring court, the relevant date for determining the law applicable ratione temporis to the dispute in the main proceedings is that of the adoption, by the Information Commissioner, of the order directing HP to grant that request, a date as at which the time limit for the transposition of Directive 2019/1024 had expired.

23

In that regard, it should be recalled that, according to well established case-law, the questions relating to the interpretation of EU law are referred by the national court in the factual and legal context which that court is responsible for defining, the accuracy of which is not a matter for the Court to determine (judgment of 27 April 2023, M.D. (Ban on entering Hungary), C‑528/21, EU:C:2023:341, paragraph 55 and the case-law cited).

24

Thus, by its questions, which it is appropriate to examine together, the referring court asks, in essence, whether Directive 2019/1024 must be interpreted as meaning that a request for access to documents held by a public sector body falls within its scope.

25

In that regard, it should be noted that, as is apparent from Article 1(1) of Directive 2019/1024, read in the light of recitals 9, 13 and 70 thereof, that directive seeks to promote the use of open data and to create conditions conducive to the development, EU-wide and within the Member States, of digital content products and services based on public sector documents with the aim of improving the functioning of the internal market.

26

To that end, that directive establishes a set of minimum rules governing the re-use, and the practical arrangements for facilitating the re-use, of documents held by public sector bodies of the Member States and by certain public undertakings and the re-use of research data.

27

Under Article 2(11) of that directive, ‘re-use’ means the use of such documents by persons or legal entities, for commercial or non-commercial purposes other than for the initial purpose within the public task, or the initial purpose of providing the services in the general interest, for which those documents were produced.

28

Although ‘re-use’, within the meaning of Directive 2019/1024, presupposes access to the documents concerned, the fact remains that they are two clearly distinct operations (see, by analogy, judgment of 27 October 2011, Commission v Poland, C‑362/10, EU:C:2011:703, paragraph 54).

29

That directive governs, as stated in Article 1(7) thereof, the re-use of existing documents held by public sector bodies and public undertakings of the Member States, without, however, laying down any obligation with regard to access to documents.

30

Indeed, in accordance with Article 1(3) of Directive 2019/1024, read in the light of recital 23 thereof, that directive builds on, and is without prejudice to, the existing EU and national access regimes. Article 1(2)(d) and (f) of that directive provides, in addition, that the directive is not to apply to documents access to which is excluded or restricted by virtue of the access regimes in the Member States.

31

Thus, Directive 2019/1024 does not enshrine a right of access to public sector documents, but presupposes the existence of such a right in the law of the Member States or in EU law, with the result that the conditions of access to those documents do not fall within the scope of that directive (see, by analogy, judgment of 14 November 2018, NKBM, C‑215/17, EU:C:2018:901, paragraph 32).

32

In the light of the foregoing considerations, the answer to the questions referred is that Directive 2019/1024 must be interpreted as meaning that a request for access to documents held by a public sector body does not fall within its scope.

33

Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.

On those grounds, the Court (Tenth Chamber) hereby rules:

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

must be interpreted as meaning that a request for access to documents held by a public sector body does not fall within its scope.