#3 - Practical Sheet: The governance and legal model of a GIP structuring a digital commons
Summary
This post is part of a research-action approach by which the Digital Society Program of the French Agency for Territorial Cohesion (ANCT) wishes to explore the relevance and the terms of use of Public Interest Groups (GIP) for the support of digital commons initiated or joined by a public actor. The aim is to expose the advantages of these structures for the purpose of carrying digital commons, but also to reveal or propose possible solutions to the various limitations encountered by actors in the field.
A two-stage methodology was used, based on bibliographic research and various interviews and workshops, to identify the "irritants" (in the sense of anything that might slow down or block the creation of such ILGs in a context of shared resources) on the one hand, and the formalization of possible solutions on the other.
Four main themes emerged: management of the commons within the GIP; possible business models; legal constitution of GIPs; and governance of the GIP. This post deals with the first two (management of the commons & possible business models), a second post will develop the two remaining themes. Each of these posts will propose recommendations to solve the irritants encountered in relation to one of the four themes identified.
This work mobilizes and completes various pre-existing resources, to which it refers as much as necessary:
- the important educational work and tools developed under the direction of the General Directorate of Public Finance, and in particular the model GIP constitutive agreement;
- the resources developed by the ANCT concerning the digital commons:
The irritants that may be encountered by actors wishing to form a GIP in order to structure a digital commons project that they have initiated or joined are mainly found during the creation of the GIP; and during the adaptation of the grouping's governance to the characteristics of the digital commons.
I. The constitution of the GIP
The first irritant raised by public actors who create a GIP is the received idea that the constitutive file is heavy and complex to put together.
« The public law regime of the GIP can be an obstacle to the adhesion of private actors »
Mathias Murmylo - BFC Digital Territory
![](/media/images/mathias_murmylo.2e16d0ba.fill-92x92.jpg)
It would be interesting to deconstruct this preconceived notion by example, by proposing resources to facilitate the creation of the file, along the lines of the Tutorial to the Digital Commons.
Recommendation 1
Mobilize the Guide to GIPs developed under the direction of the General Directorate of Public Finance and hosted on the DAJ website.
Recommendation 2
Identify and share ILGs whose constitution (and completion of the constitutive file) can serve as an example.
The creation of a GIP also presupposes the availability of skills to ensure compliance with the rules of public law. However, these skills are rare in the majority of digital commons projects. It is therefore necessary to consider ways of mobilizing this expertise when the GIP is set up. If this expertise can be found within one of the stakeholder actors, it could be interesting to develop it.
Recommendation 3
Secure legal expertise as an in-kind contribution from a GIP member by amending Article 7.1 Contributions ("Statutory contributions may be [...] non-financial contributions in the form of know-how, skills or expertise, particularly legal and accounting expertise, useful for the creation and management of the grouping.")
In the absence of such skills in-house, it will be necessary to prioritize the use of third-party experts. The actors interviewed upstream stressed the importance of using a chartered accountant from the start of the project.
Recommendation 4
Request an accounting officer at the start of the project.
The objective of an ILG, for its stakeholders, is to pool resources. As an extension of this objective, it may be worthwhile to consider the creation of a community of GIPs in order to pool certain resources as well as the financing of expertise between them.
Recommendation 5
To set up a community of GIPs to be able to exchange on common problems; but also to mutualize certain financing (consultations, etc.).
« Pooling the financing of the use of certain expertise (legal consultations, etc.) could be a relevant solution »
Jérôme Notin - ACYMA
![](/media/images/jerome_notin.2e16d0ba.fill-92x92.jpg)
Recommendation 6
Compile a list of expert (human) resources that can be mobilized.
In the longer term, consideration could be given to setting up a national platform to support the creation of GIPs (e.g., via express legal consultations).
II. The governance of the common within the GIP
The governance of the digital commons within the GIP can be a source of irritation in terms of its wording in the constitutive agreement, as well as the means of defining the role of the public player within the commons.
Organization of the governance in the constitutive agreement
The organization of the governance of the GIP, and more specifically of the digital commons it supports, is essential and must be thought out and formalized as soon as possible. Indeed, it is clear from exchanges with actors involved in this type of structure that the governance of a GIP supporting a digital commons project initiated or joined by a public actor must respond to several problems and issues. It is therefore important to avoid paralysis of governance due to incompatible political visions among members, while limiting an imbalance in favor of a single member, which would cause the end of the grouping.
Recommendation 7
Anticipate the risk of paralysis as soon as the collective constitution is drafted, and propose innovative ways of making decisions. Before drafting, test several scenarios of decisions to be taken in a general assembly where there would be major disagreements.
Moreover, a digital commons can federate a large number of heterogeneous actors of diverse geographical origin. Providing for extended governance that takes into account all these actors may lead to decision-making bodies becoming mere registration chambers. There is also a material difficulty in ensuring this extended governance and in particular in integrating private actors. Finally, by seeking to involve all stakeholders as much as possible, governance can become too cumbersome and lead the GIP to be inoperative.
Recommendation 8
Provide for the creation of a board of directors in the founding agreement. The model constitutive agreement hosted by the DAJ provides for this constitution in article 17.
Recommendation 9
Balance the powers of the General Assembly and the Board of Directors, so that the former is responsible for the major orientations, and the latter for day-to-day management1. Particular attention will therefore be paid to the wording of articles 16.2 and 17.2. The distribution proposed in the model constitutive agreement hosted by the DAJ is an ideal working basis.
Although the model constitutive agreement provides that "In the matters listed in 1°, 2°, 4°, 5°, 6° and 7° of this article, the decisions of the General Assembly may only be taken by a qualified majority", this is not a legal obligation and the decision-making procedures may be adapted in the statutes.
Recommendation 10
To adapt the decision-making procedures of the General Assembly as provided for in Article 16.2.
Among the prerogatives that the law necessarily assigns to the general assembly is the modification of the constitutive agreement. However, the self-management characteristic of the digital commons, as well as the desire to allow the community to expand over time, may make it necessary to modify the rules of governance of the commons and therefore of the GIP. It therefore seems appropriate to limit the provisions in the founding agreement to the minimum, and to draw up in parallel a set of internal regulations, which can be modified by the Board of Directors, devoted to the other rules of governance.
Recommendation 11
Circumscribe the constitutive agreement to the legal minimum, detailed in Sheet No. 2 of the GIP Guide.
Recommendation 12
Draft internal regulations that complete the constitutive agreement and detail the governance of the deliberative bodies (general assembly and board of directors).
The good governance of a grouping also requires the animation of the community within it, the burden of which should not be underestimated.
Recommendation 13
Establish a community facilitator within the GIP.
Finally, the actors already involved in a digital commons process carried out by a GIP report an irritant related to the fact that the political governance of the GIP is superimposed on the technical governance of the commons, which can lead to conflict and illegibility for the actors. In this case, it may be interesting to integrate the "technical" representatives into the political governance of the GIP.
Recommendation 14
To institute via an article 18 a technical committee composed of contributors to the common and whose opinion - ideally binding - must be solicited by the board of directors regarding certain specific issues.
Circumscribing the role of the public actor
The integration of contributors into the governance of the GIP also makes it possible to prevent another irritant: a conception of the common roadmap dictated not by the users or the community, but only by the public authorities, which could lead to a reallocation of the GIP's missions. This will be all the more the case if the GIP acknowledges in its constitutive agreement that it will adopt agile methodologies with a prevalence of user feedback.
Recommendation 15
Integrate into Article 2 - Purpose and Territorial Scope a 3rd paragraph stating that "Members commit to operate according to the principle of agile development methodologies, with a prevalence of user feedback" and detail the methodologies retained in Title IV - Miscellaneous Provisions.
These measures are preventive and will be usefully complemented - over time - by a major program to educate public servants (and elected officials) about the value of agile development methodologies and listening to platform users. This program will have to make public servants (and elected officials) aware of the benefits of agile development methodologies and of listening to platform users, as opposed to vertical decision-making.
What legal structures to carry digital commons? #Introduction
#3 - Practical Sheet: The governance and legal model of a GIP structuring a digital commons
This post is part of a research-action approach by which the Digital Society Program of the French Agency for Territorial Cohesion (ANCT) wishes to explore the relevance and the terms of use of Public Interest Groups (GIP) for the support of digital commons initiated or joined by a public actor. The aim is to expose the advantages of these structures for the purpose of carrying digital commons, but also to reveal or propose possible solutions to the various limitations encountered by actors in the field.
A two-stage methodology was used, based on bibliographic research and various interviews and workshops, to identify the "irritants" (in the sense of anything that might slow down or block the creation of such ILGs in a context of shared resources) on the one hand, and the formalization of possible solutions on the other.
Four main themes emerged: management of the commons within the GIP; possible business models; legal constitution of GIPs; and governance of the GIP. This post deals with the first two (management of the commons & possible business models), a second post will develop the two remaining themes. Each of these posts will propose recommendations to solve the irritants encountered in relation to one of the four themes identified.
This work mobilizes and completes various pre-existing resources, to which it refers as much as necessary:
- the important educational work and tools developed under the direction of the General Directorate of Public Finance, and in particular the model GIP constitutive agreement;
- the resources developed by the ANCT concerning the digital commons:
The irritants that may be encountered by actors wishing to form a GIP in order to structure a digital commons project that they have initiated or joined are mainly found during the creation of the GIP; and during the adaptation of the grouping's governance to the characteristics of the digital commons.
I. The constitution of the GIP
The first irritant raised by public actors who create a GIP is the received idea that the constitutive file is heavy and complex to put together.
« The public law regime of the GIP can be an obstacle to the adhesion of private actors »
Mathias Murmylo - BFC Digital Territory
![](/media/images/mathias_murmylo.2e16d0ba.fill-92x92.jpg)
It would be interesting to deconstruct this preconceived notion by example, by proposing resources to facilitate the creation of the file, along the lines of the Tutorial to the Digital Commons.
Recommendation 1
Mobilize the Guide to GIPs developed under the direction of the General Directorate of Public Finance and hosted on the DAJ website.
Recommendation 2
Identify and share ILGs whose constitution (and completion of the constitutive file) can serve as an example.
The creation of a GIP also presupposes the availability of skills to ensure compliance with the rules of public law. However, these skills are rare in the majority of digital commons projects. It is therefore necessary to consider ways of mobilizing this expertise when the GIP is set up. If this expertise can be found within one of the stakeholder actors, it could be interesting to develop it.
Recommendation 3
Secure legal expertise as an in-kind contribution from a GIP member by amending Article 7.1 Contributions ("Statutory contributions may be [...] non-financial contributions in the form of know-how, skills or expertise, particularly legal and accounting expertise, useful for the creation and management of the grouping.")
In the absence of such skills in-house, it will be necessary to prioritize the use of third-party experts. The actors interviewed upstream stressed the importance of using a chartered accountant from the start of the project.
Recommendation 4
Request an accounting officer at the start of the project.
The objective of an ILG, for its stakeholders, is to pool resources. As an extension of this objective, it may be worthwhile to consider the creation of a community of GIPs in order to pool certain resources as well as the financing of expertise between them.
Recommendation 5
To set up a community of GIPs to be able to exchange on common problems; but also to mutualize certain financing (consultations, etc.).
« Pooling the financing of the use of certain expertise (legal consultations, etc.) could be a relevant solution »
Jérôme Notin - ACYMA
![](/media/images/jerome_notin.2e16d0ba.fill-92x92.jpg)
Recommendation 6
Compile a list of expert (human) resources that can be mobilized.
In the longer term, consideration could be given to setting up a national platform to support the creation of GIPs (e.g., via express legal consultations).
II. The governance of the common within the GIP
The governance of the digital commons within the GIP can be a source of irritation in terms of its wording in the constitutive agreement, as well as the means of defining the role of the public player within the commons.
Organization of the governance in the constitutive agreement
The organization of the governance of the GIP, and more specifically of the digital commons it supports, is essential and must be thought out and formalized as soon as possible. Indeed, it is clear from exchanges with actors involved in this type of structure that the governance of a GIP supporting a digital commons project initiated or joined by a public actor must respond to several problems and issues. It is therefore important to avoid paralysis of governance due to incompatible political visions among members, while limiting an imbalance in favor of a single member, which would cause the end of the grouping.
Recommendation 7
Anticipate the risk of paralysis as soon as the collective constitution is drafted, and propose innovative ways of making decisions. Before drafting, test several scenarios of decisions to be taken in a general assembly where there would be major disagreements.
Moreover, a digital commons can federate a large number of heterogeneous actors of diverse geographical origin. Providing for extended governance that takes into account all these actors may lead to decision-making bodies becoming mere registration chambers. There is also a material difficulty in ensuring this extended governance and in particular in integrating private actors. Finally, by seeking to involve all stakeholders as much as possible, governance can become too cumbersome and lead the GIP to be inoperative.
Recommendation 8
Provide for the creation of a board of directors in the founding agreement. The model constitutive agreement hosted by the DAJ provides for this constitution in article 17.
Recommendation 9
Balance the powers of the General Assembly and the Board of Directors, so that the former is responsible for the major orientations, and the latter for day-to-day management1. Particular attention will therefore be paid to the wording of articles 16.2 and 17.2. The distribution proposed in the model constitutive agreement hosted by the DAJ is an ideal working basis.
Although the model constitutive agreement provides that "In the matters listed in 1°, 2°, 4°, 5°, 6° and 7° of this article, the decisions of the General Assembly may only be taken by a qualified majority", this is not a legal obligation and the decision-making procedures may be adapted in the statutes.
Recommendation 10
To adapt the decision-making procedures of the General Assembly as provided for in Article 16.2.
Among the prerogatives that the law necessarily assigns to the general assembly is the modification of the constitutive agreement. However, the self-management characteristic of the digital commons, as well as the desire to allow the community to expand over time, may make it necessary to modify the rules of governance of the commons and therefore of the GIP. It therefore seems appropriate to limit the provisions in the founding agreement to the minimum, and to draw up in parallel a set of internal regulations, which can be modified by the Board of Directors, devoted to the other rules of governance.
Recommendation 11
Circumscribe the constitutive agreement to the legal minimum, detailed in Sheet No. 2 of the GIP Guide.
Recommendation 12
Draft internal regulations that complete the constitutive agreement and detail the governance of the deliberative bodies (general assembly and board of directors).
The good governance of a grouping also requires the animation of the community within it, the burden of which should not be underestimated.
Recommendation 13
Establish a community facilitator within the GIP.
Finally, the actors already involved in a digital commons process carried out by a GIP report an irritant related to the fact that the political governance of the GIP is superimposed on the technical governance of the commons, which can lead to conflict and illegibility for the actors. In this case, it may be interesting to integrate the "technical" representatives into the political governance of the GIP.
Recommendation 14
To institute via an article 18 a technical committee composed of contributors to the common and whose opinion - ideally binding - must be solicited by the board of directors regarding certain specific issues.
Circumscribing the role of the public actor
The integration of contributors into the governance of the GIP also makes it possible to prevent another irritant: a conception of the common roadmap dictated not by the users or the community, but only by the public authorities, which could lead to a reallocation of the GIP's missions. This will be all the more the case if the GIP acknowledges in its constitutive agreement that it will adopt agile methodologies with a prevalence of user feedback.
Recommendation 15
Integrate into Article 2 - Purpose and Territorial Scope a 3rd paragraph stating that "Members commit to operate according to the principle of agile development methodologies, with a prevalence of user feedback" and detail the methodologies retained in Title IV - Miscellaneous Provisions.
These measures are preventive and will be usefully complemented - over time - by a major program to educate public servants (and elected officials) about the value of agile development methodologies and listening to platform users. This program will have to make public servants (and elected officials) aware of the benefits of agile development methodologies and of listening to platform users, as opposed to vertical decision-making.
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