EU puts forward new rules to enhance access to data in the digital economy
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Regulatory and Public Affairs Director
Belgium
Ireland
As Regulatory & Public Affairs Director in Brussels, I assist companies facing an unprecedented wave of new EU regulation that will have an impact on every business operating in the digital and data-related economy. I help companies navigate complex EU decision-making processes and understand the practical application of the law to their sectors.
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Access to data is an essential resource in the digital economy, yet according to the European Commission, its value is frequently concentrated in the hands of a few very large companies.
The Commission’s new proposal for a Data Act, published on 23 February 2022, aims to address low trust in data sharing, conflicting economic incentives and technological obstacles that have been identified as holding back the full potential of data-driven innovation. It takes the form of a horizontal Regulation with the purpose of facilitating better data portability, fair access to data and ensuring interoperability. The proposal is designed to encourage fair business-to-business, and business-to-government exchange of data, as well as vice versa.
Among other aspects, the proposal for a Data Act sets out rules regarding the following:
- Manufacturers and designers have to design products in a way that data is easily accessible by default;
- Where a data holder is obliged to make data available to another enterprise, any conditions would have to be fair and non-discriminatory and any compensation must be reasonable;
- An ‘unfairness test’ will be introduced via a general provision defining unfairness of a data-sharing contract term, complemented by a list of clauses deemed to be unfair;
- A new framework whereby public sector bodies and Union institutions will have free access to data held by enterprises in cases of “exceptional need” such as public emergencies, pandemics or disasters;
- Minimum regulatory requirements imposed on providers of cloud, edge and other data processing services to enable switching between such services;
- Future Commission Implementing Acts are foreseen to adopt common specifications to improve interoperability and compliance with essential requirements for the use of smart contracts;
- Safeguards regarding potentially unlawful third party access to data processing services offered on the EU market;
- The Commission shall recommend voluntary model contract terms on data access and use;
- A clarification to the existing Database Directive to specify that databases containing machine-generated data are excluded from the protection of the sui generis right;
- The Commission also intends to adopt delegated acts to introduce a monitoring mechanism on switching charges imposed on the data processing service providers’ market.
This initiative, which will have implications for a wide range of industrial sectors, is part of the Commission’s data strategy. It also follows the recent adoption of a Data Governance Act.
Want to know more?
Join our EU Regulatory & Public Affairs team on 9 March for a free webinar entitled: Will the Data Act unlock value in the EU data economy? Legal and public affairs experts from our firm, including Hein Hobbelen, Feyo Sickinghe, Tobias Bräutigam, Lluis Girbau Cabanas and Francine Cunningham, will outline the key aspects of the new proposal and its interplay with competition law and data protection.
