Introduction General introduction

The legal approach - the objective of this report

In order to provide a complete picture of the legal framework for information sharing in the maritime domain, this legal report combines the analyses related to the legal sub-components WSP 1.1 and WSP 1.2 by:

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  Mapping of use groups based on legal barriers, access rights and responsibility to share and EU Right to Act (WSP 1.1), and
  
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  Identify general and specific legal barriers (WSP 1.2)
  

Methodology

This report represents a legal analysis and we have applied a focused legal approach in order to define best options for the CISE development. We apply this legal approach in this phase of the study and the findings will be integrated in the comprehensive context of the IA study later. Also, such a legal approach allows a distinct focus on the important role of the law for the implementation of CISE; on the legal barriers and the legal initiatives needed in order to steward the CISE process.

Integration of annexes
Applying a CISE related legal approach also means that we have carefully assessed the relevant legal acts, documents and information available in order to identify and isolate the information relevant for the analysis. This means that we have included the relevant legislation and projects analysed by Annex 1-2, and we do not attempt to exhaust the listing in Annex 4. The purpose of Annex 4 is rather to provide an overall overview of the many legal acts and information available. The list is not exhaustive, and may be supplemented if need be.

We find the work and conclusion of the preparatory CISE works very useful for our analysis. By this report, we do not attempt to alter any of the findings or analyses of these works. We may arrive at different conclusions for the focused legal objective of this report. However, we encourage the reader to see the many studies as a valuable enrichment. The CISE process is complex, and we find that each and every CISE project and document contributes to sheer insight and perspectives useful for this process. Thus, the findings and recommendations provided her are also solely the opinion of the Consultant.

An EU CISE focus
The report addresses the EU level and not directly the national barriers or competences. Such approach makes sense because the transnational nature of the CISE is characterised by the horizontal interaction amongst national administrations driven primarily by the synergies of networking. It also corresponds to the European transnational tendencies in information networking as already employed by the EU agency model and the related information networking. This means that the eventual legal and/or institutional reform of national competences is within the discretion of the MS themselves. But these transnational approaches imply also a significant challenge for the MS for the successful development of the CISE. And as the overview of national responsible authorities within the different functions (Annex 3) indicates, many national actors are involved the CISE operations.

A few modifications to our proposal

This legal report is primarily based on desk research, which provides a focused approach to be further discussed and elaborated in the next stages of the IA study.

The legal approach also implies that this report concerns legal barriers rather than cultural and technical barriers.

Legal barriers are obstacles deriving from legislation – at national, EU or international level. Technical barriers are obstacles that are deriving from the system of information exchange; it may for example be related to how to transfer data or access data. Cultural barriers are obstacles deriving from the interaction of organisations and/or people not deriving from legal or technical barriers. These may be due to organisational culture and cultural differences between different organisations/people and different peoples. Lack of social capital may also constitute cultural barrier. This is seen e.g. in the trust or lack hereof in a social network and thus in this context among the different authorities that are to share information. The degree to which the sender of data trusts that the data will be used for the promised purpose and not distributed further without agreement is important. The notions of institutional or administrative barriers are frequently used in different contexts. From a legal point of view; legal barriers include the institutional and administrative barriers in terms of institutional and administrative norms. Norms include not only normative written legislation. It also refers to any norm - written or non-written - with binding effect. However, institutional and administrative barriers may also belong to cultural barriers when it refers to institutional and administrative (i.e. organisational) behaviours. Likewise, barriers concerning habits or ways of operating and traditions are here defined as cultural barriers. The point here is simply to allow certain flexibility in the categorisation of legal, technical and cultural barriers as the individual barrier may contain several elements. We will use the distinction between norms and behaviours when addressing legal and cultural barriers respectively. However, in order to simplify the study, and unless we state otherwise, we will in general address administrative barriers as cultural barriers. Likewise, we will address institutional barriers as legal barriers.

WSP 1.1 Concerning: Portraying the most appropriate options for portraying CISE user communities and access rights across the seven user communities.

In the Inception report, and for the illustration of portraying options for user group categories, we proposed a figure outlining information sharing level in the MS per user function (Figure 2, section 1). Nevertheless, for the analysis presented by this report, we have found that such mapping per user group provides no added value for the argumentation and the findings presented on the most appropriate options for portraying user groups. Hence, the proposed figures have been omitted.

This has been addressed already by the Inception Report. However, Annex 4 on Responsible authorities within the different functions and Annex 5 on CISE Legislation and Research list have been revised and updated as agreed during the inception phase.

WSP 1.2 Concerning Activity 1: The analysis of the EU Right to Act focuses on Subsidiarity and proportionality in terms of CISE.

The proposal includes for illustration a Table F1 in Appendix F. Nevertheless, for the analysis presented by this report, our study has indicated that such a Table provides no further value for the analysis presented here. The purpose here is to present the overarching argumentation for CISE EU Right to Act. In case the specific break-down represented by the Table becomes relevant in the next stages of the IA study, the Table or parts hereof may likewise later be applied.

This report presents the legal function of the CISE including options policy options.

Annexes 1-2 presented here has been formulated as a result of the concrete analysis undertaken. Thus, these annexes replace the proposed Table F2 in Appendix F of the proposal.

Concerning Activity 3: Removing obstacles of specific nature concerning the different sector data policies.

Annexes 1-2 presented here has been formulated as a result of the concrete analysis undertaken. Thus, these annexes replace the proposed Table F3 in Appendix F of the proposal.

Regarding addressing the specific barriers in the function specific legislation that is addressed in section 2.3.3

Concerning Activity 4: Removing obstacles of general nature proposing ways and conditions to deal with:

Annex 1-2 presented here has been formulated as a result of the concrete analysis undertaken. Thus, these annexes replace the proposed Table F4-6 in Appendix F of the proposal.