The EUPL in the Interoperable Europe Act

Analysing specific Interoperable Europe Act provisions

Published on: 01/03/2023
Last update: 09/03/2023

The adoption of the Interoperable Europe Act (proposed on 18/11/2022) would constitute a major progression towards the – non binding – implementation of the European Interoperability Framework (EIF) formulating the EU interoperability strategic policy since 2010. It will reinforce the use of the European Union Public Licence (EUPL) as our common legal interoperability licensing tool.

After assessment and based on consensus, the proposal of a directly applicable Regulation was considered as the most appropriate legal instrument for promoting public sector cross-border interoperability. As clearly formulated in the proposal introductive context, a high level of interoperability of public sector digital solutions is not only essential for delivering efficient cross-border services to citizens and enterprises across the digital single market, but it will also reduce costs and mitigate cybersecurity risks.

Because the implementation of interoperability solutions is widely depending on open source software, open specifications and standards, sharing will become the default option among all public sector bodies, and “not-sharing” will be the exception to be motivated by a legal justification.

According to the Act (articles 1 to 4), the Regulation will directly apply to all EU and Member States public sector institutions, meaning much more than 100.000 bodies. They will carry out interoperability assessments of their developed solutions. They will (with possible exceptions) share technical documentation and where applicable the documented source code. This will be fulfilled by publication on the Interoperable Europe portal (IEP) or on a connected Member State repository. As a result of such sharing, other interested bodies will be authorised to adapt solutions to their own needs.

Fortunately, some of the major needed components listed in the Act exist already or will require little adaptations:

  • The ‘Interoperable Europe Portal’ (IEP) providing a single point of entry for information related to interoperability. Everyone will see this portal as a continuity of that, based on experience from, SEMIC, e-Practice and through the NIFO (National Interoperability Framework Observatory) has already widely promoted a culture of interoperability.
  • The standard European open source licence (EUPL-1.2) adopted by the Commission Implementing Decision (EU) 2017/863, as mentioned in the Act proposal context p.3. The EUPL is now strong from a 15 years old history, following its adoption by numerous public and private bodies and after the approval of leading Open Source/ Free Software organisations (OSI & FSF).

Regarding the EUPL in particular, the implementation of the Act implies the use of open source licences by public sector bodies acting as “licensors” (in particular for clarifying copyright issues and providing precisions related to the needed reciprocity, re-distribution of improvements, compatibility with other licences, liability, applicable law etc.). The EUPL addresses these requirements and is already the default licence for all EU Commission produced software according to Decision C(2021)8759. In the framework of the Interoperable Europe Act, the EUPL large scope is especially convenient as it covers the – always growing – remote access to software “as a service” and all components of the licensed “work” including for example the specifications, technical documentation and documented source code, as analysed by K. Żok, in the Masaryk University Journal of Law (Poland). The Act proposal (Article 8.3) states that when a public sector body provides its own portal, it shall ensure interoperability with the IEP and allow for the use of the EUPL. Several Member States, like Germany with the FITKO Federal Development Portal, are actively progressing in such direction.

This contributes to make the EUPL the common default open licensing instrument, knowing that its use is not exclusive of other licensing instruments when needed or mandatory: for example, it may happen that in the specific case of reusing substantial parts of third party software code received from GPL licensors, there is an obligation to reuse the same licence for distributed derivatives. It may be also that where no reciprocity is needed, a totally permissive licence could be a convenient alternative but in all cases the EUPL must be proposed when possible and reasonable.

Other provisions of the proposed Act state that the EIF (in general or in specialised matters) will be further developed by an Interoperable Europe Board (IEB), which will also deliver labels of "Interoperable Europe Solutions" (IES), may propose the publication on the IEP of other interoperability solutions (i.e. from third party, but distributed under OSS licence) and may propose and support innovations (i. e. the development of new IES and their tests in ad-hoc environments or "sandboxes").

The role of this IEB will become especially important. It will include representatives of Member States and be chaired by the Commission. It will be assisted by experts and by an Interoperable Europe Community (IEC). We may also see there a forum for the evolution of the EUPL which, like the portal, is a tool aimed to respond to the needs of the strongly growing users community.