Re: [Trad April] [Fr->En] Proofreading request: legal analysis of free software prioritisation

[Thérèse Godefroy <godef.th AT free.fr>]

Le vendredi 24 janvier 2014 à 16:27 +0100, Jeanne Tadeusz a écrit :
> > 
> I've done the proofreading. Could you convert it somehow ? 
> I'll send it to IFSSOLR soon. 
> 

Hi Jeanne,

Here is an HTML version with footnotes as <fn>, drupal-like. The links
have been checked. A lot of them were wrong for some unknown reason
(copy-paste from the PDF gave very strange results).

To check everything correctly, I'd would have to save it in Drupal.

Have a good week-end,
Thérèse

Analysis

Free software preference and compliance with European law

13 June 2013

Following the recent debates and announcements about the alledged illegality of a legislative provision that would give priority to free software, April gathered legal data in support of such provision. Based on European case law as well as examples in the European Union, and legal analysis, it appears that giving priority to free software is a political choice, made by a government which chooses to favour licenses that give it a certain number of rights. This political and legal choice therefore does not create any specific problem as regards European laws in general and competition law in particular. On the contrary, it is a strong signal in favour of interoperability, sustainability, freedom and equal access to IT.

Free software preference and compliance with European law

The legal issue was settled by the Italian Constitutional Court on 23 March 2010The ruling is available on http://www.cortecostituzionale.it/actionSchedaPronuncia.do?anno=2010&numero=122 [it] (Our translation).. This ruling is of particular interest because it originates from the very same issue that we are concerned with: the central Italian Government had referred the matter to the Constitutional Court because it held the view that a local Piemont law which gave an explicit preference to free software was contradictory to competition law.

Actually, the Court explains that there is no violation of open market regulations inasmuch as the concept of free software is not referring to a specific technology, trademark or product, but rather is a legal characteristics:

“Finally, the plaintiff again argues against Article 6, section 1, of the law, extending the citation to section 2, and also Article 4, section 1, more specifically the part which provides that the Region should use Open Source computer programs for the release of documents that carry a release requirement. [...] In this regard, the State's lawyers claim that these regulations would be anticonstitutional, specifically as regards the competition principle, as developed by the European Court of Justice's jurisprudence and implemented in the our public contracting system with the Contract Code.

[...] However, one would find it hard to understand that an institution's choice of a characteristics, as opposed to a product, on the basis of a technical and economical evaluation of convenience and relevance, should be considered in breach of the rules protecting market competition. These claims are therefore groundless.”

This ruling is especially important, because it is the only one to date which explicitely settles this legal issue at the European level (other rulings, in Spain for example, were based on the division of competences between the local and central governments).

It reiterates that the free software qualification is a functional characteristics and does not define a specific product. Thus giving such priority does not create any problem as regards competition laws.

Moreover, other countries chose to implement policies requiring free software and open formats in priority, without any legal uncertainty issue (Spain, Portugal, etc.) Thus the compliance of such a preference with European legislation is not in question.

The public policies that give preference to free software and open formats in Europe

In Italy

On 7 August 2012, the Italian Parliament adopted a change to the Public Procurement Code, which makes it mandatory to use free software and to only consider proprietary software inasmuch as the lack of a free solution is proven (Article 68 CAD ­Codice dell’Amministrazione Digitale). With this provision, the Italian Parliament wishes to make the use of free software and open formats the rule, thus relegating proprietary software among exceptions. Evaluation must be done in compliance with the rules and criteria established by the Agenzia per l’Italia Digitale. A decree on Open Data and open formats was also published in 2012.

For more information:

• http://colibre.org/les-logiciels-libres-dans-le-code-des-marches-publics-italien/ [fr]
• http://www.april.org/decret-sur-les-formats-ouverts-en-italie [fr]

In Portugal

In Portugal, the legislative route was taken on 21 June 2011 in order to solemnly promote open standards and encourage their use within public administrationsLaw 36/2011 of 21 June 2011 establishing the adoption of open standards for the State's IT systems / Lei n.o 36/2011 de 21 de Junho ­ Estabelece a adopção de normas abertas nos sistemas informáticos do Estado.

Then, on 21 November 2012, the Government confirms its policy in favour of open standards by publishing a list of open standards in the Official Journal and demanding that government services migrate all their documents to open formats before July 2014http://www.esop.pt/portugal-­publishes-­open­-standards-­catalogodf-­pdf-­and-­several-­other-­standards-­are­-mandatory/ — the regulation is available in http://dre.pt/pdf1sdip/2012/11/21600/0646006465.pdf [pt] (page 3).. One of the major arguments of the Portugese Government is the reduction of 500 million Euros per annum in public expenditure, to be re-invested into the local economy.

In Spain

In Spain, the publicationDecreto 159/2012, de 24 de julio, por el que se regula la apertura y reutilización de las aplicaciones informáticas de la administración pública de la Comunidad Autónoma de Euskadi; this decree was published in the Official Gazette of the Spanish Basque Country on 23 August 2012. See http://www.esle.eu/blog/blog/2012/08/23/decreto­-de-­reutilizacion­-de-­software-­del-­gobierno-­vasco-­2/ [es]. by the Spanish Basque Country of a decree encouraging the pooling of free IT investments starts a progressive migration of government services toward free software and open formats.

Some other local authorities also took similar measures: according to a document published by the European Commission, the Government of the Spanish Extremadure Region started migrating its 40,000 office workstations toward free software. The Region's Government estimates that the migration will result in a cost reduction of 30 million Euros per annumFor further information: https://joinup.ec.europa.eu/community/osor/news/spains-extremadura-starts-switch-40000-government-pcs-open-source.

In the light of these examples, it clearly appears that the alleged non-compliance with European competition laws is ungrounded, and that using legislative means to prioritise free software is by no means illegal. On the contrary, a survey in Europe shows that, given the budget restrictions, the current practice of public authorities is to pool investments; this cooperative strategy is only possible with free software and open standards.

Legal analysis: the legal validity of a provision giving preference to free software

The legal validity of a provision giving preference to free software

The Directive on the Coordination of Procedures for the Award of Public ContractsDirective 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32004L0018:en:HTML. does not rule out the specification of functional requirements by the contracting authority, which in any case has the final say on the choices made in its order.

The only major constraint imposed upon Member States is the absence of discrimination —i.e. the principle of equal treatment of all the tenderers—, which however is subject to important modulation; it is thus relative and not absolute. The Court of Justice of the European Communities reiterated this fact when it considered that the principle of equal treatment “implies that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified”CJCE 20 September 1988 case 203/86, Spain v Council pt 25 Rec.ECJ p.4563; see http://curia.europa.eu/juris/liste.jsf?language=en&num=C-203/86; also ECJ, 7 November 2000, case C­168/98 Luxembourg v Parliament and Council, Rec.ECJ, p. 9131 http://curia.europa.eu/juris/liste.jsf?language=en&num=C-168/98..

Moreover, differences in treatment exist in other areas. For instance there are legislative provisions facilitating access to public procurement contracts by SMEs, in the French Economy Modernisation Act of 4 August 2008Economy Modernisation Act of 4 August 2008, published in the Official Journal of the French Republic on 5 August 2008; see http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000019283050 [fr]., which derive from the same rationale. More specifically, Article 26 of this law provides that the public purchasers can reserve a fraction of their high technology, R&D and technological studies procurements to innovative SMEs, or give them preferential treatment in case of equivalent tenders.The provision in question —the choice of giving priority to free software within the public service of digital education, that is but a part of this market segment— can be viewed as similar in nature to that which already exists in favour of SMEs. It would even have less impact than the latter, which covers 62 areas of activity: IT, energy, telecommunications, environment, defence, electricity, heating, etc.This list was established bu decree of 16 March 2009, published on 25 March 2009; see http://legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000020283716&categorieLien=id [fr].

As regards infringement of the equal treatment principle, prioritising free software does not create any discrimination among market participants, since the lawmakers only specify a model which provides the expected functionalities but does not discriminate between the participants themselves, who each remain free to submit a tender that meets the technical requirements established by the lawmakers in order to fulfill their goals. In short, the point is simply to enshrine the needs of the public entity into the law, upstream, thus ensuring the furtherance of its purposes; this is an elementary and legitimate prerogative of the State.

Moreover, it is important to stress that this grievance of discrimination and infringement of the equal treatment principle, established by the competition laws, has been settled by the Conseil d'État (French highest administrative court) in a litigation case involving free software itself, which arised from a dispute between the Picardie Region and two proprietary software editors. The ruling of 30 September 2011 stresses the difference between the supply of products and the supply of services: in the free software field, there is no procurement of software supply to the extent that, as a matter of principle, there is no purchase of license; on the other hand, a market does exist for services.In this respect, even though Article 6 I of the French Public Procurement Code requires that the services sought by the contracting authority be defined by “technical specifications” in the tendering documents, these specifications must be justified by the object of the contract. Section III of the same article emphasizes that the specifications “cannot create unjustified obstacles to the opening up of public procurement to competition” (this transposes Article 23 of Directive 2004/18/CE). In order to avoid any restriction of that nature, Section IV regulates the terms that may be used by contract specifications to “mention a particular manufacturing method or process, or a defined origin”, or “refer to a trademark, patent or type.” In this respect, the Conseil d'État considers that, even though the contract specifications defining software services required that the tenderers use a given software product, these requirements were not discriminatory, because this free software product was accessible to all the companies which were interested in providing those services, and because the tenderers were able to modify it in order to fulfill the needs of the contracting authorityInterpretation of the ruling as published by Francis Lefebvre, ed., 2013 RJDA 2012 n°156 February - Other Special Contracts..

The importance of general interest

The Conseil Constitutionnel (French Constitutional Court) had the opportunity in the past to issue rulings on similar issues, in which market players claimed a breach of equal treatment and an infringement of open market competition commissioned by the lawmakersSee for instance the rulings 2002­460 DC of 22 August 2002 http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/depuis-1958/decisions-par-date/2002/2002-460-dc/decision-n-2002-460-dc-du-22-aout-2002.673.html [fr] and 2001­452DC of 6 December 2001 http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2001/2001-452-dc/decision-n-2001-452-dc-du-06-decembre-2001.511.html [fr].. “The Nine Wise Ones” (les neuf sages) have been reminding us, time and again, that the equal treatment principle should always be balanced against the pursuit of general interest: for a given set of services or supplies, the procurement contract may include a reserved quota in favour of a particular sector, according to the legitimate general interest that the lawmakers are seeking.Now, what is involved here is a segment of the public administration in which general interest must indeed be promoted more than ever: to prioritise free software in a public service for digital education amounts to guaranteeing equal access to students throughout the French Republic, whatever their social origin. This also amounts to promoting a user-controlled tool, thanks to the availability of the source codes. Finally, this amounts to promoting a tool which upholds values of sharing that are in line with educational ethics and must be given priority all over the school system of the Republic.

Free software alone ensures the perfect interoperability of computer systems; proprietary software on the contrary imposes its formats and makes the user dependent, thereby jeopardising data sustainability over time.

The “technological neutrality”

Claiming that a provision in favour of free software would infringe the technological neutrality principle is nonsense, because this principle, the origin of which can be found in the works of the UNCITL (United Nations Commission on International Trade Law), was designed to facilitate the transition from printed media to electronic media. Then, as IT was spreading, this principle came to be used in various legislations, such as the French General Tax Code or Post and Electronic Communications Code. With this provision, the lawmakers aim to fight the dependence on a single technology, in favour of interoperability and data sustainability.

In this respect, firstly, the Public Procurement Code does not formally include the technological neutrality principle; mentioning any “technological neutrality principle in the public procurement law” is therefore irrelevant. Secondly, filing such a grievance against a provision that favours free software —a software that intrisically fulfills the technological neutrality goal— is an intellectual misappropriation, aimed at twisting the letter of the law against its spirit and purposes.

On the intrinsic benefits of free software

Free software exhibits some intrinsic benefits, each of which is a reason to make free software a priority within public administration:

• the freedom to use the software, for any purpose whatsoever;
• the freedom to study the software, thanks to the availability of source codes, and thus make it fit one's needs;
• the freedom to copy the software without any restriction;
• the freedom to modify the software and redistribute the derived versions to the public.

These four freedoms, when implemented together, thus provide the fundamental guarantees: interoperability, accessibility, and ultimately technological independence —a major issue, today more than ever.

These are legal characteristics and functionalities that government services are entitled to require: free software is not a product, but rather a political choice.

A provision that gives priority to free software is in line with the recommendations in Prime Minister Jean-marc-Ayrault's memorandum of 19 September 2012, dealing with the proper use of free software in government services.

Indeed, given the significant imbalance of this market segment, due essentially to the economic dominance of proprietary software, one feels the need for a proactive policy in favour on free software. Beyond market considerations, this is a political choice in favour of equal and sustainable access to digital resources, that free software and open standards alone are able to ensure ad vitam aeternam.

Apart from the fact that an existing recommendation of the State in favour of free software, given the lawmakers' goal, does not offend classical competition laws —inasmuch as the public purchasers of the central and local governments are responsible for evaluating the tenders and for deciding according to the traditional “best offer” rule— the issue is of a totally different nature.

FInally, it is important to recall that encouraging the preferential use of Free Software was one of President François Hollande's commitments in the electoral campaign of 2012; his answer to the National Council of Free Software (CNLL, was that the State needed IT services favouring “agility rather than large, segmented and expensive projects“, and stressed that “free software, on the other hand, allows a higher degree of cooperation and makes competition between external service providers easier.“More specifically about education, he stated: “I hope that high quality free software, using standardised open formats, will be taught in schools and universities, and that its use will be given preference in examinations, for office as well as scientific, technical and documentary applications.”See http://cnll.fr/static/pdf/cp-positions-floss-ump-ps-3d.pdf [fr].