Comparative study on cloud computing contracts : final report. Annex 2, Methodology and sample country selection work package 2.
Date: 2015-08-21
Institutions: Directorate-General for Justice and Consumers
Subjects: EU Member State, United States, cloud computing, comparative study, computer network, computer systems, contract, contractual liability, data protection, information technology, law relating to information, legislation, protection of privacy

Comparative Study on 
cloud computing 
contracts 

Final Report - Annex 2 

Prepared by DLA Piper UK LLP 
[March – 2015] 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Directorate-General for Justice and Consumers 

European Commission 
B-1049 Brussels 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EUROPEAN COMMISSION 

Comparative Study on 
cloud computing 
contracts 

Final Report - Annex 2 

Methodology and sample country selection Work 
Package 2 

Prepared by DLA Piper UK LLP 

Directorate-General for Justice and Consumers 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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Methodology and sample country selection — Work Package 2 

Information note 

This  proposed  methodology  to  identify  a  representative  sample  of    EU  Member  states  is 
drafted in the framework of the "Comparative Study on cloud computing contracts" ordered 
by  the  Directorate-General  Justice  of  the  European  Commission1  ("the  Study").  In 
accordance with the Open invitation to tender with reference number as referred to on the 
first page of this document, the present document should set out a methodology to identify 
a  representative  sample  of  EU  Member  States'  legislations  relating  to  cloud  computing 
contracts. 

Next to several legal criteria, the methodology also takes into account economic criteria in 
order  to  guarantee  that  the  selected  sample  is  representative  for  the  EU.  In  addition,  as 
requested by the Commission, U.S. law will also be included in the sample. 

This  sample  is  developed  in  agreement  with  the  European  Commission  and  identifies  the 
countries for which an in-depth comparative law analysis will be performed for certain key 
legal areas in relation to cloud computing contracts. 

CRITERIA FOR SELECTING THE SAMPLE COUNTRIES 

It  has  been  agreed  between  the  Commission  and  DLA  Piper  that  in  order  to  develop  the 
methodology, account shall be taken of a number of factors (not only legal criteria) to the 
extent these can be analyzed by DLA Piper as a law firm and for which DLA Piper has the 
required resources.  The criteria taken into account in the below report are the following: 

 Legal criteria: 

o 

o 

o 

o 

advanced  cloud  legislation,  based  on  the  input  gathered  during  Work 
Package 1 of the Study 

global  scorecard  of  biggest  ICT  countries  in  relation  to  cloud  regulatory 
environment 

law  most  often  chosen  as  the  law  applicable  to  cloud  contracts  and  cloud 
litigation 

the  selection  should  offer  a  sufficient  representation  of  the  different  legal 
traditions across Europe  

 Economic criteria 

o 

o 

o 

o 

o 

composition of  the  global  ICT  market,  identifying  the  most  important    ICT 
countries 

size of public cloud services market in numbers 

size of public cloud services market in percentages 

size of the hosting market 

development of ICT 

PROPOSED SAMPLE OF REPRESENTATIVE JURISDICTIONS 

Based on the above-mentioned legal and economic criteria which will be explained in detail 
below, DLA Piper has selected 7 EU countries in addition to the U.S. which will be subject 
to the in-depth comparative law analysis during Work Package 3 of the Study.  

1 Study with reference number JUST/2012/EVAL/PR/0116/A4. 

1 

 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

These  selected  EU  countries  are:  France,  Germany,  Italy,  Poland,  Sweden,  The 
Netherlands and United Kingdom. 

1. 

LEGAL CRITERIA 

In  the  following  overview,  several  legal  criteria  (as  mentioned  in  the  Information  Note  to 
this document) are investigated in order to determine which countries would be particularly 
interesting  for  an  in-depth  comparative  law  exercise  in  relation  to  several  key  cloud 
contract  law  issues.  This  further  analysis  will  be  conducted  under  Work  Package  3  of  the 
Study, the results of which will be established in the Final Report of the Study.  

The  countries  mentioned  under  the  sections  below  do  not  themselves  automatically  form 
the selected countries; the definitive selection is made on the basis of an evaluation of all 
those criteria, together with the economic criteria which are further discussed under section 
2.  

The  overview  under  this  section  1  is  made  on  the  basis  of  information  available  to  DLA 
Piper,  including the work perform  during Work  Package 1 of  this Study. It is however not 
guaranteed that all existing information is taken into account. 

1.1 

Legal assessment based on a comparative law analysis following the WP 
1 results 

1.1.1  Introduction 

The  legal  assessment  of  the  EU  Member  States  in  order  to  establish  whether  existing  or 
future legislation, case law and administrative guidelines are particularly relevant for cloud 
computing contracts is primarily based on the work that has been performed by DLA Piper 
during Work Package 1 of the Study.  

In  the  table  below,  an  overview  is  given  of  the  EU  countries  which  were  identified  as 
offering particularly interesting information on this point. The legal issue cited in the table 
corresponds to the information given by the National Expert of that country in the template 
Questionnaire Work Package 1, used by DLA Piper to perform its tasks under WP 1 of the 
Study.  These  legal  issues  are  not  exhaustive,  but  mainly  serve  as  an  example  why  the 
cited country is deemed particularly interesting from a cloud computing contract law point 
of view. 

The  cloud  contract  relevant  information  as  described  is  a  summary  only  and  for  more  in-
depth  information  on  the  legal  systems  of  each  of  the  cited  countries,  we  refer  to  the 
"Country Report Overview — Questionnaires Work Package 1". 

Further,  we  wish to point  out that the below  discussed countries are mentioned based on 
an  analysis  of  all  of  the  investigated  countries  (i.e.  the  27  EU  Member  States  and  U.S. 
level) under WP 1. A brief summary of the assessment of all of the countries is given under 
Annex 1 to this report. In this Annex, an Excel-sheet is included in which it is listed in short 
for  which  countries  particularly  cloud-specific  information  was  obtained  (categorized  per 
investigated topic). 

The below table of countries is only based on the amount of specific legal information on cloud contract 
laws.  However,  in  order  to  make  the  final  selection  of  sample  representative  countries  as  mentioned 
above, the analysis of the other legal and economic criteria discussed in this document will also be taken 
into account. 

2 

 
 
 
 
 
 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

1.1.2   Schematic  overview  of  countries  with  particularly  interesting  legal  input  (based 

on WP 1) 

Table 1: Overview WP 1 input 

Country 

Legal issue 

Cloud contract relevant information 

Denmark 

Service levels 

Data privacy 

In Denmark, there is an interesting tendency to apply the 
principles  set  out  in  the  Sales  of  goods  Act  (in  principle 
not applicable) to analogy to a cloud computing contract, 
particularly in relation to agreed service levels. 

The  Danish  Data  Protection  Authority  has 
issued 
guidelines in relation to cloud computing (contracts). E.g. 
security  measures  should  generally  be  in  line  with  those 
as set out in the guidelines for the public sector. 

Cooperation 
obligation 

Data privacy 

Warranties 

Liability 

The  good  faith  execution  principle,  which  is  known  in 
several  countries,  has  been  interpreted  by  courts  in  the 
IT  sector,  as  meaning  e.g.  that  the  IT  client  must 
communicate  all  material  information,  must  be  clear  on 
needs, must agree on installation of updates, etc. 

The  French  Data  Protection  Authority  (DPA)  CNIL,  has 
issued a detailed opinion on cloud computing. 

Also,  although  French 
laws  on  privacy  are  an 
implementation  of  the  European  rules  in  this  respect, 
many  say  that  the  interpretation  of  the  CNIL  go  further 
than what has been stated in the Directive. 

Specific  laws  exist  on  restrictive  practices  in  relation  to 
competition where some behaviour is considered unlawful 
such  as  presenting  clauses  with  no  reciprocity,  non-
negotiable templates, etc. 

The  French  Supreme  Court    has  issued  interesting  case 
law,  also  applicable  to  cloud  contracts,  e.g.  ruling  that 
limitation of liability clauses are valid even in the event of 
a  breach  of  a  main  obligation,  on  the  condition  that  it  is 
justified by the economics of the contract. 

Term and 
termination 

Specific  rules  on  the  termination  of  services  contracts, 
relevant for cloud contracts, are applicable in a consumer 
context. 

Contract 
structure 

Incorporation  of  T&C  in  an  agreement  (by  means  of 
reference or otherwise) is explicitly regulated in the Civil 
Code - if clauses are very unusual they do not form part 
of the agreement. 

Data privacy 

There is guidance by the German DPA 

Liability 

Specific 
legislation  on  T&C  exists.  For  example, 
possibilities to limit liability are very limited. Fixed liability 
caps  are  difficult;  there  is  no  possibility  to  limit  liability 
for gross negligence.  

This  legislation  applies  also  in  a  B2B  context,  which  is 
quite  rare  and  therefore  very  interesting  from  a  legal 

France 

Germany 

3 

 
 
 
 
 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

Term and 
termination 

Consequences 
of termination 

point of view. 

Special  rules  on  the  termination  of  service  contracts 
exist, which are relevant in the cloud environment. 

Specific  rules  on  term  of  consumer  contracts  exist,  such 
as limitation on the tacit renewal of the contract. 

On  the  basis  of  privacy  laws,  after  the  processing  term, 
the  processor  is  obliged  to  hand  over  to  the  controller 
after  the  end  of  the  service  processing  all  results  of 
processing and documentation containing data or to keep 
or  destroy  them  on  his  request.  This  is  particularly 
interesting  for  cloud  services  as  there  generally  is  a 
strong call from the customer side to maintain the data in 
order to ensure transition to a new provider or return the 
data to the customer; it has been noted in German legal 
literature  that  such  demand  could  be  undermined  even 
by existing data protection legislation. 

Hungary 

Contract 
classification 

There  is  legal  doctrine  on  how  cloud  contracts  could  be 
classified under Hungarian law (mainly mixed contracts). 
However,  the  exact  classification  of  the  cloud  contract  is 
highly dependent on the concrete circumstances. 

Administrative 
guidelines 

The  Hungarian  Financial  Authority  has  issued  some 
guidelines  on  the  use  of  cloud  computing  (including 
contracts).  This  may  further  impact  future  regulatory 
initiatives in relation to the uptake of cloud in Hungary. 

Ireland 

Data privacy 
and audit 

Contract 
Structure 

Italy 

Liability 

Term and 
termination 

4 

There is interesting guidance of the Irish Data Protection 
Authority.  In  this  guidance,  the  Irish  Data  Protection 
Authority  recommends  that  rather  than  providing  audit 
rights in a multi-tenant environment, it may be better to 
have  certificates  of  the  provider  proving  adherence  to 
certain standards.  

This is what is done sometimes in practice already. 

The Civil Code stipulates specific rules on the applicability 
of  T&C,  with  some  clauses  that  need  be  approved  in 
writing  by  the  counterparty.  A  tickbox  was  considered 
insufficient  by  recent  case  law.  As  many  cloud  contracts 
are concluded by way of accepting standard terms, this is 
an important element of legislation to take into account. 

Limitation  of  liability  clauses  which  are  part  of  general 
terms  and  conditions  drafted  by  one  of  the  parties  must 
be  specifically  approved  in  writing  by  the  other  party  in 
order to be enforceable.  

There  is  interesting  case  law  which  states  that  a 
termination  clause  making 
(or 
substantially all) obligations and covenants contained in a 
contract, is not enforceable against the counterparty.  

reference 

to  all 

Moreover, a clause regarding termination of the contract, 
incorporated  in  the  T&C  drafted  by  one  of  the  parties, 
must be specifically approved by the other party.  

 
 
 
 
 
 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

Latvia 

Data privacy 
and audit 

Contract 
structure 

Poland 

Service levels 

There  is  guidance  of  the  Irish  Data  Protection  Authority 
(DPA).  In  this  guidance,  the  DPA  recommends  that  data 
controllers  perform  internal  audits  and  make  a  report  of 
it. 

It also relates to the safety of personal data, including a 
reference to the issue of using cloud computing. 

The  Civil  Code  explicitly  provides 
rules  on 
incorporation  of  T&C  into  a  contract.  This  is  particularly 
interesting  as  many  cloud  providers  work  with  such 
incorporation, especially towards consumers and SME. 

for 

incorporate 
Consumer  protection 
European  laws,  but  the  Polish  Office  of  Competition  also 
maintains a list of additional clauses which are considered 
not to be acceptable and which is binding for all providers 

rules  exist  and 

The nature of service levels and service credits are widely 
debated in Polish legal doctrine, which is interesting from 
a  legal  point  of  view  as  it  offers  different  viewpoints  of 
how  these  contractual  mechanisms  should  legally  be 
classified. 

Data privacy 

There  have  been  established  unofficial  guidelines  setting 
rules for use of cloud computing in public sector 

Liability 

There are interesting considerations and case law on the 
liability in case of a contractual breach (also applicable to 
cloud computing contracts)  and  how  the burden of  proof 
is divided between the contractual parties. 

Spain 

Service levels, 
subcontracting 
and data 
privacy 

Audit 

Sweden 

Data privacy 

Other 
information 

5 

Also  the  Spanish  Data  Protection  Authority  has  issued 
recommendations  in  relation  to  the  use  of  cloud.  In  its 
recommendations,  the  Spanish  Data  Protection  Authority 
has 
level 
issued  some  considerations  on  service 
agreements,  stating  that  some  points  of  attention  must 
be reflected in the service level agreement. 

Further,  the  opinion  of  the  Spanish  Data  Protection 
Authority  addresses  the  issues  related  to  the  use  of 
subcontractors, especially when these subcontractors are 
established in third countries. 

In Sweden, specific guidelines exist in the financial sector 
which  state  that  the  financial  services  provider  must 
ensure  audit  rights  when  outsourcing  services,  such  as 
when using cloud contracting services. 

A decision has been issued by the Data Inspection Board 
with  relevant  recommendations  for  the  clients  of  cloud 
services 

Swedish  accounting  legislation  states  that  accounting 
information must be stored for seven years and in case of 
storage abroad, this must be notified to the Swedish Tax 
Agency.  This  may  have  implications  for  using  cloud 
services. 

 
 
 
 
 
 
 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

Contract 
structure 

Data privacy 

There  are  specific  rules  in  relation  to  making  available  a 
copy of terms and conditions to the counterparty (being a 
consumer or a company with less than 50 employees) in 
order to ensure the enforceability of such conditions. 

A guidance has been issued by the Dutch Data Protection 
Authority  which  deals  with  the  application  of  the  data 
protection  rules  in  the  case  of  a  contract  for  cloud 
computing  services  concluded  with  a  service  provider 
established in the United States. 

Liability  

There are several limitations on the possibility to limit or 
exclude the liability of parties. 

Concluding the 
contract 

In The Netherlands, a specific matrix exists to assess how 
clauses  should  be  interpreted  in  case  of  a  dispute 
between the parties. 

Contract 
structure 

The  rules  for  validly  incorporating  documents  into  a 
contract  are  largely  derived  from  UK  case  law.  A  higher 
threshold  applies  for  B2C  contracts  with  the  consumer 
being  afforded  additional  protection  by  UK  consumer 
protection laws and the UK’s Office of Fair Trading.  

Data privacy 

The  UK  Information  Commissioner  has  issued  guidance 
on the use of cloud computing. 

Liability 

Term and 
termination 

Subcontracting 

Specific laws exist for limiting liability. It is not possible to 
limit liability for fraud or fraudulent misrepresentation, or 
for  negligence causing  death  or  personal  injury.  In  most 
other  circumstances,  any  limitation  of  liability  must 
satisfy  a  test  of  ‘reasonableness’  which  is  interesting  to 
analyse  from  a  legal  perspective,  although  only  in 
exceptional circumstances will a limitation not reasonable 
in a B2B context. 

The parties to a contract have the flexibility to determine 
the length of its term. However, UK law prescribes certain 
circumstances  where  a  party  may  terminate  a  contract 
regardless of what a contract specifies. Specific rules also 
grant additional protection to consumers.  

Specific  rules  exist  in  relation  to  when  subcontracting  is 
not  permitted  and  how  liability  can  be  apportioned 
between the supplier and subcontractor. This is important 
to  observe  given  that  many  cloud  providers  are  likely  to 
subcontract  their  activities  (e.g.  in  a  Software  as  a 
Service  context,  a 
the 
infrastructure element). 

third  party  may  supply 

The Netherlands 

United Kingdom 

6 

 
 
 
 
 
 
 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

1.2   Global regulatory scorecard 

The  2013  "BSA  Global  Cloud  Computing  Scorecard"2  tracks  improvements  in  the  policy 
environment for cloud computing in countries around the world. The study focuses on the 
24  countries  together  accounting  for  80  percent  of  the  global  information  and 
communication technologies (ICT) market. 

According  to  the  report,  the  findings  are  based  on  "the  one-of-a-kind  examination  […] 
using  seven  policy  categories  that  measure  the  countries’  preparedness  to  support  the 
growth of cloud computing.". 

The BSA Scorecard is thus based on an analysis of seven policy categories. Each of those 
criteria  are  an  indicator  of  whether  the  cloud  market  in  an  investigated  country  is 
sufficiently  supported.  The  policy  areas  under  scrutiny  in  this  study  are  data  privacy3, 
security4, cybercrime5, intellectual property rights6, support for industry-led standards and 
international  harmonization  of  rules,  promoting  free  trade  and  ICT  readiness/broadband 
deployment.  

In essence, these criteria (which are further sub-divided into specific questions allowing the 
measurement of the criteria and which go along with a score per each of those questions), 
are  thus  used  to  measure  whether  the  countries  under  investigation  offer  the  necessary 
policy environment in order to allow the cloud computing market to fully develop itself. 

France, Germany, Italy, Poland, Spain and the United Kingdom are investigated in the BSA 
report as EU-countries (with the exclusion of the other EU Member States). In accordance 
with  the  report,  especially  Poland,  the  United  Kingdom  and  Germany  have  made  further 
improvements  in  their  regulatory  environment  to  support  cloud  and  have  improved  their 
standing vis-à-vis the other investigated countries. 

All  investigated  EU  Member  States  are  ranked  within  the  first  half  of  the  investigated  24 
countries,  with  Germany  ranked  fourth,  followed  by  France  (fifth)  and  United  Kingdom 
(sixth). Italy, Spain and Poland are respectively ranked tenth, eleventh and twelfth7. 

An overview of the investigated EU Member States is as follows: 

2 See http://cloudscorecard.bsa.org/2013/assets/PDFs/BSA_GlobalCloudScorecard2013.pdf.  
3 Relating to guarantees against unwanted disclosure of data stored in the cloud. 
4 Taking appropriate security measures to secure the data stored in the cloud, as well as preventing access to physical centers 
where data are hosted. 
5 Preventing any malicious initiatives to attack cloud data, which are an interesting target due to the enormous amount of data 
stored in the cloud. 
6 Relating to who owns which rights in relation to the data stored in the cloud, which may be of high importance given the fact 
that critical business data may be stored in the cloud. 
7 See BSA GlobalCloudScorecard2013 page 10. 

7 

 
 
 
 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

Table 2: BSA Global Cloud Computing Scorecard for EU Member States 

EU Member State8 

BSA Global Cloud Score 

Rank 

Germany 

France 

UK 

Italy 

Spain 

Poland 

79,1 

78,3 

76,9 

75,5 

73,7 

72,0 

4 

5 

6 

10 

11 

12 

1.3    Laws  most  frequently  chosen  as  the  law  applicable  to  cloud  contracts 

and cloud litigation 

To  our  knowledge,  no  general  data  is  available  in  relation  to  the  law  which  is  most 
frequently chosen as the law applicable to the cloud contract.  

A  distinction  will  likely  exist  between  negotiated  contracts  (where  the  applicable  law  will 
likely depend on the bargaining power of each of the parties, and most likely result in the 
law  of  the  place  of  establishment  of  either  the  provider  or  the  cloud  customer),  and 
standard contracts. 

In  relation  to  standard  contracts,  recent  research  has  been  conducted  from  which  it 
appears that typically the law of the jurisdiction in which the provider has its principal place 
of  business  will  apply.  For  standard  contracts  where  this  law  has  not  been  appointed  as 
applicable law, the research indicates that often, English law is chosen either for customers 
inside of England or even outside of England9.  

As  to  cloud  litigation,  it  appears  from  the  input  under  WP  1  that  for  most  (if  not  all) 
countries,  cloud  is  a  relatively  new  phenomenon  from  a  regulatory  perspective.  Although 
some  case  law  can  relate  to  cloud  contracts  as  well,  there  have  not  been  reported  any 
cloud specific litigation cases by our network of National Experts. 

2. 

ECONOMIC CRITERIA 

In this section on economic criteria, several economic data are cited and analysed. Without 
it being excluded that other sources of information than those cited in this report exist, our 
general  finding  is  that  at  the  point  of  drafting  the  present  report,  in  publicly  consultable 
information,  not  much  information  is  made  available  in  relation  to  economic  numbers  on 
cloud computing and the size and/or importance of cloud markets specifically.  

This is the reason why other relevant economic indicators (e.g. global ICT market, hosting 
market,  etc.)  have  been  investigated.  The  relevance  of  each  of  these  criteria  is  further 
detailed under each separate section. 

Again we wish to point out that not all of the countries mentioned below, hence which are 
important from an economic point of view, will automatically be included in the sample of 
representative  countries  to  be  analysed  under  Work  Package  3.  The  definitive  sample 

8 Other EU Member States were not investigated for this BSA Global Cloud Computing Scorecard. 
9  C.  Millard,  Cloud  Computing  Law,  Oxford  University  Press,  2013,  46-47.  However,  it  should  be  noted  that  this  research  is 
limited to the T&C of 36 providers, hence does not allow to draw general conclusions. 

8 

 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

proposed  is  a  cross-section  of  those  countries  deemed  particularly  relevant,  both  from  a 
legal and an economic point of view. 

As with the legal criteria discussed under section 1, the below analysis is made on the basis 
of information publicly available, or to which DLA Piper, as a law firm, has access.  

2.1 

Composition  of  the  global  ICT  market  and  significant  market  shares  of 
some EU countries 

The eight largest economies in the EU are those of Germany, France, the United Kingdom, 
Italy, Spain, The Netherlands, Sweden and Poland10. An analysis of available data on (i) the 
size of the ICT sector as a percentage of GDP, and (ii) the  employment percentage of the 
ICT personnel on total employment shows that the importance of the ICT sectors in these 
Member  States  is  generally  in  line  with  or  higher  than  the  EU  average.  These  Member 
States  thus  have  significant  ICT  sectors,  and    the  importance  of  the  ICT  sector  to  their 
economies is representative of that throughout the EU. 

Data  on  the  size  of  the  ICT  sector  as  a  percentage  on  national  GDP  of  Member  States 
serves as a proxy in identifying the Member States with significant ICT markets. According 
to the latest data published by Eurostat11 the average percentage of the ICT sector on GDP 
in the EU 27 Member States (prior to the accession of Croatia) was 4,38%.  

Eurostat  data  exists  for  most  of  the  EU  Member  States12.  As  the  following  table 
demonstrates,  the  size  of  the  ICT  sector  on  GDP  in  Sweden  and  the  United  Kingdom  is 
bigger than the EU average. Sweden and the United Kingdom are then followed in the list 
by  several  Member  States  with  percentages  higher  than  the  EU  average,  however  those 
Member States have relatively small economies. The percentage of the ICT sector on GDP 
in  France  and  Germany,  two  of  the  largest  economies  in  the  EU,  are  close  to  the  EU 
average.  

10 Source: Eurostat, accessible on http://epp.eurostat.ec.europa.eu/portal/page/portal/national_accounts/data/main_tables.  
11 Source: Eurostat, accessible on 
http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&init=1&language=en&pcode=tin00074&plugin=1.  
12 EU countries for which no data has been published are indicated in the below table with a N/A. 

9 

 
 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

Table 3: ICT market share on GDP 

Percentage of the ICT sector on 
GDP  (2010) 

6,4 

5,85 

5,79 

5,47 

5,17 

4,94 

4,78 

4,75 

4,64 

4,62 

4,38 

4,18 

4,02 

3,61 

3,58 

3,54 

3,49 

3,28 

3,17 

3,17 

2,45 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

EU Member State 

Sweden 

United Kingdom 

Hungary 

Finland 

Bulgaria 

Estonia 

Slovakia 

Denmark 

Belgium 

Czech Republic 

EU 27 (data prior to 
Croatia's accession) 

France 

Germany 

Portugal 

Slovenia 

Spain 

Latvia 

Poland 

Austria 

Romania 

Lithuania 

Cyprus 

Croatia 

Greece 

Ireland 

Italy 

Luxembourg 

Malta 

The Netherlands 

10 

 
 
 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

Data  on  the  employment  percentage  of  ICT  personnel  on  total  employment  in  individual 
Member  States  also  sheds  light  on  the  importance  of  the  ICT  sector  in  the  Member 
States13. 

Table 4: ICT Personnel on total employment 

EU Member State 

Percentage of the ICT personnel 
on total employment (2010) 

Sweden 

Finland 

Hungary 

United Kingdom 

Estonia 

Denmark 

The Netherlands 

Belgium 

France 

Czech Republic 

Slovakia 

EU 27 (data prior to 
Croatia's accession) 

Slovenia 

Austria 

Germany 

Spain 

Latvia 

Bulgaria 

Lithuania 

Poland 

Portugal 

Romania 

Croatia 

Cyprus 

Greece 

Ireland 

Italy 

Luxembourg 

4,41 

3,95 

3,54 

3,31 

3,19 

3,18 

3,09 

2,84 

2,82 

2,74 

2,72 

2,53 

2,32 

2,29 

2,28 

2,11 

1,86 

1,81 

1,66 

1,65 

1,54 

1,45 

N/A 

N/A 

N/A 

N/A 

N/A 

N/A 

13 Source: Eurostat, accessible on 
http://epp.eurostat.ec.europa.eu/tgm/table.do?tab=table&init=1&language=en&pcode=tin00085&plugin=1.  

11 

 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

Malta 

N/A 

Publicly  available  and  trustworthy  economic  indices  on  all  EU  countries  are  scarce  to  our 
finding, but in relation to the major markets in Europe, some forecasts have been made. As 
stated  above  (see  under  section  1.2),  24  countries  represent  80  per  cent  of  the  global 
information  and  communication  technologies  (ICT)  market.  Of  these,  the  most  important 
EU countries are France, Germany, Italy, Poland, Spain and the United Kingdom.  

 

 

 

 

 

According  to  recent  reports,  the  United  Kingdom  remains  a  lucrative  location  for 
vendors,  with  it  being  home  to  one  of  the  largest  outsourced  public  service 
markets. It is a country predicted to host areas of fast growth, such as data centers 
and cloud services and big data. UK IT spending has been forecasted to amount to 
GBP 53,449 billion in 201314. 

One of Europe's leading economies, Germany, is set for sales in the overall sector 
to  reach  153,4  billion  euros  in  2014,  with  smartphones,  tablets,  software  and 
services driving business15. According to research, a growth of 4,1% in German IT 
spending  in  2014  to  EUR  49,6  billion  is  expected.  Cloud  computing  is  expected  to 
be  a  particularly  interesting  market  segment  in  Germany,  with  opportunities  for 
local providers or global firms with a local presence16. 

In 2011 the total income of the ICT sector in Poland was PLN 31,3 billion (approx. 
7,5 billion EUR)17. Polish IT spending is expected to reach US$ 9, 5 billion in 2013. 
Poland  is  expected,  according  to  expert  reports,  to  maintain  its  status  as  one  of 
Central and Eastern Europe (CEE)'s fastest-growing IT markets over the 2013-2017 
forecast period18.  

French IT spending is expected to reach 34 billion EUR in 2012. The most robust IT 
sector  in  France  is  expected  to  be  IT  services,  where  virtualization  and  cloud 
computing are expected to offer opportunities. In 2011 the French market for cloud 
computing was estimated at around US$ 2 billion, equivalent to around 5% of the 
total  value  of  the  IT  services  market.  By  2016,  it  is  forecast  that  the  market 
opportunity could be worth around US$ 9 billion19. 

Italy is said to be Europe's fourth largest market for the IT industry. The IT market 
reached  21,6  billion  EUR  in  2008,  of  which  the  software  segment  is  one  of  the 
largest in Europe20. 

For other EU countries, similar data are difficult to find. 

Source: 

http://www.marketresearch.com/Business-Monitor-International-v304/Germany-Information-Technology-Q2-

14  Source:  http://www.marketresearch.com/Business-Monitor-International-v304/United-Kingdom-Information-Technology-Q1-
8005862/.  
15 Source: http://www.bangkokpost.com/tech/gadget/399083/german-it-market-eyes-2014-growth-but-lags-global-pace. 
16 
8079298/.  
17 Source: http://www.paiz.gov.pl/files/?id_plik=19606.  
18 Source: http://www.marketresearch.com/Business-Monitor-International-v304/Poland-Information-Technology-Q1-7350817/. 
19 Source: http://www.marketresearch.com/Business-Monitor-International-v304/France-Information-Technology-Q4-7179437/. 
20 Source: 
http://www.google.de/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=1&ved=0CCkQFjAA&url=http%3A%2F%2Fwww.gov.
mu%2Fportal%2Fsites%2Fictexport%2Fexporters%2Fmarketinfo%2FItaly%2FICT%2520Sector%2520-
%2520recent.doc%3FcontainerId%3DAU386111S&ei=sORQU76oDe6O7Qbwk4DgAg&usg=AFQjCNGirKusBY9ugf_BcpQSXW
Tr91wxUw&sig2=iU7INtSQTS6dpz401EkK7A. 

12 

 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

2.2 

Public Cloud Services market in numbers 

The  importance  of  the  use  by  the  public  sector  of  cloud  computing  cannot  be 
underestimated. As the Commission stated itself in its Communication on the "Unleashing 
the Potential of Cloud Computing in Europe"21, the public sector is the EU's largest buyer of 
IT  services.  It  can  therefore  be  a  driving  force  for  further  regulation  and  technical  and 
operational requirements for cloud services. 

The  following  table  first  gives  an  overview  of  the  public  cloud  services  market  value  (see 
under  the  column  "In  numbers")  and,  next,  an  overview  of  the  degree  of  partial  or  full 
implementation  of  cloud  services  within  the  public  sector  according  to  a  number  of 
correspondents in the public sector.  

It should be noted that data are only available for a limited number of EU countries. 

Table 5: Public cloud market 

In numbers 
(billion USD)22 

In percentage (%)23 

Partial 
implementation24 

Full implementation 

Unknown 

6 

2 

UK 

Germany 

Poland 

France 

Italy 

Denmark 

4,28 

0,16 

3,02 

1,33 

Not in scope 

The Netherlands 

Not in scope 

Spain  

US 

1,31 

50,50 

Not in scope 

Not in scope 

Not in scope 

Not in scope 

Not in scope 

Not in scope 

33 

12 

18 

19 

31 

30 

29 

18 

14 

10 

Note Table 5: Country-specific responses on percentages are not statistically significant and should be 
used for directional purposes only.  

From this table results that, next to U.S., the German and French market have a relatively 
high public cloud services market value. 

In relation to partial and full implementation of cloud, next to the US, several EU countries 
score particularly well, in particular Italy, Denmark and The Netherlands. Spain's scores are 
relatively lower. It should however be noted that for some important countries (Germany, 
Poland and France) no numbers are available. 

529 

final, 

2012, 

27  September 

http://eur-lex.europa.eu/legal-

21  Commission  Communication  COM(2012) 
content/EN/TXT/PDF/?uri=CELEX:52012DC0529&from=EN, p. 13.  
22 Source: 2013 "BSA Global Cloud Computing Scorecard", 
http://cloudscorecard.bsa.org/2013/assets/PDFs/BSA_GlobalCloudScorecard2013.pdf. 
23 Source: KPMG study 2012 on cloud implementation by governments (mentioned in KPMG, Exploring the cloud, a global study 
of governments' adoption of cloud, 2012), to be found via the following link: 
http://www.kpmg.com/ES/es/ActualidadyNovedades/ArticulosyPublicaciones/Documents/Exploring-the-Cloud.pdf.  This  study 
analyses  how  public  sector  entities  are  planning  to  adopt  cloud  and  what  the  challenges  are  in  such  case.  Its  key  findings, 
based on a 2011 survey of 429 government executives and managers in 10 countries, as well as 808 executives in the private 
sector,    are  that  (a)  government  adoption  of  cloud  is  happening  slowly,  but  is  poised  to  accelerate,  (b)  the  public  sector  has 
modest  expectations  of  cloud,  and  (c)  security  remains  the  biggest  concern,  but  certification  would  help  (see  page  4  of  the 
study). The percentages of partial and full implementation of the cloud can be found in this report on pages 22-23 in Figure 16. 
24 Meaning that the public sector entity in question has either partially or fully adopted a cloud-based solution in order to offer its 
public services to the general public. 

13 

 
 
 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

Note  that  these  findings  are  in  line  with  national  initiatives  of  public  cloud,  of  which  the 
most  well-known  are  Andromede  in  France,  G-Cloud  in  the  UK  and  Trusted  Cloud  in 
Germany. 

2.3 

  Size of the hosting market 

The size of the hosting market is a good indicator as well. Hosting services often form (part 
of) the service offered under a cloud contract. 

In a recent study25,  the existing (traditional) hosting market is compared with the rapidly 
growing cloud market. Although the providers offering traditional hosting services are still 
dominant, cloud growth figures have risen expectation that cloud-based solutions will start 
dominating  the  traditional  market  soon.  The  size  of  the  hosting  market  is  in  this  sense 
important  that  many  providers  of  traditional  hosting  services  may  be  keen  to  (partly) 
switch  to  cloud-based  offerings  to  satisfy  customers'  needs,  hence  important  hosting 
markets may soon turn out to be important cloud markets as well. 

The  study  indicates  that  the  market  share  of  Germany,  France,  the  United  Kingdom, 
Poland,  the  Netherland  and  Italy  closely  relates  to  the  other  economic  indicators  as  cited 
above  and  the  legal  assessment  under  section  1.  The  results  of  the  study  offer  an 
interesting  insight  in  market  size  and  share  of  hosting  providers.  Although  Germany  has 
the  largest  market  share,  The  Netherlands  have  the  most  hosting  providers  in  absolute 
numbers,  which  makes  them  both  good  candidates  to  include  in  the  sample  of 
representative  countries  to  analyse  under  Work  Package  3.  The  United  Kingdom,  Poland 
and  France  have  a  strong  market  share  and  a  high  number  of  hosting  providers.  Spain, 
Italy  and  to  some  extent  Sweden  also  take  an  important  place  in  the  ranking  of  the 
countries which are investigated in the study, and could therefore also be considered to be 
included in the representative sample.  

Table 6: Hosting market26 

Country 

Germany 

UK 

Poland 

France 

The Netherlands 

Italy 

Spain 

Sweden 

Romania 

Czech Republic 

Denmark 

% Market share in 
the EU 

Number of hosting 
providers  

28 

13 

10 

9 

8 

3 

3 

2 

2 

2 

1 

246 

215 

102 

138 

253 

83 

110 

74 

45 

56 

62 

25 Interxion, White Paper, "The Evolution or the European Cloud Market. Defining success: best practices by hosting providers", 
http://www.interxion.com/Documents/Whitepapers%20and%20PDFs/The%20Evolution%20of%20the%20European%20Hosting
%20Market%20whitepaper%20-%20online%20version.pdf.  
26 Source: Netcraft IP Addresses, August 2012, cited in Interxion, White Paper, "The Evolution or the European Cloud Market. 
Defining success: best practices by hosting providers", 
http://www.interxion.com/Documents/Whitepapers%20and%20PDFs/The%20Evolution%20of%20the%20European%20Hosting
%20Market%20whitepaper%20-%20online%20version.pdf, page 4.  

14 

 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

Belgium 

Ireland 

Austria 

1 

1 

1 

75 

40 

64 

2.4 

  Development of ICT 

The size and importance of the telecommunication sector of a country is a good indication 
to measure its ability to use or to adopt to cloud based solutions, as there is likely to be a 
correlation  between  the  size  of  the  telecommunication  sector  and  the  size  of  the  cloud 
based  economy.  Therefore,  the  revenue  generated  by  the  telecommunication  sector  is 
considered  as  a  relevant  economic  factor  for  composing  the  representative  sample  of 
Member States to be investigated under Work Package 3.  

A  study  by  the  International  Telecommunication  Union  shows  the  performance  of  55 
countries  which  provide  92%  of  the  total  GDP.  The  study  includes  most  European 
Countries27. 

Table 7: Revenue from telecommunication services28 

Member State 

Revenue (2010) in million 
USD 

Germany 

France 

United Kingdom 

Italy 

Spain 

The Netherlands 

Poland 

Belgium 

Portugal 

Greece 

Sweden 

Denmark 

Czech Republic 

Austria 

Ireland 

Hungary 

Slovakia 

Slovenia 

73314 

71099 

62674 

56064 

46334 

16811 

14456 

10471 

10066 

9170 

7342 

7211 

6572 

6323 

5119 

4276 

2624 

1566 

27 The study encompasses 19 European Union Member States. 
28 
D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf, Table 4.3.  

International  Telecommunication  Union,  "Measuring 

the 

Information  Society",  2012,  p.  136,  http://www.itu.int/en/ITU-

15 

 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

Estonia 

943 

As apparent, Germany, France, the United Kingdom, Italy and Spain are ranked at the top 
of this international list which investigated the revenue from all telecommunication services 
during 2007-2010.  

These countries are also closely followed by The Netherlands and Poland, which, given the 
limited  size  of  GDP,  indicates  the  strong  role  of  telecommunication  services  in  these 
countries' economies.  

Belgium,  Portugal  and  Greece  are  situated  in  the  middle  of  the  chart,  closely  followed  by 
Sweden and Denmark. 

Further  down  the  chart  are  countries  such  as  Czech  Republic,  Austria,  Ireland,  Hungary 
with Slovakia, Slovenia and Estonia being ranked at the bottom of the list. 

The results from the ICT Development Index (IDI), set out in the same study performed by 
the  International  Telecommunication  Union  and  providing  an  index  "combining  11 
indicators into one benchmark measure that serves to monitor and compare developments 
in  ICT  across  countries",  roughly  confirm  the  results  relating  to  the  importance  of  the 
telecommunication  sector  in  the  aforementioned  economies.  The  IDI  overview  lists  155 
countries (including all European Member States) under investigation.  

According  to  the  International  Telecommunication  Union,  the  Nordic  Countries  (i.e. 
Sweden, Finland, Denmark) all rank high. Sweden even ranks second of all 155 countries, 
which  is  the highest  score  of  all  EU  countries.  It is followed  by  Denmark  (3),  Finland  (5), 
The  Netherlands  (6),  Luxembourg  (7)  and  the  United  Kingdom  at  10.  Germany,  France, 
Austria  and  Ireland  figure  in  the  top  20  countries.  The  top  30  is  further  completed  with 
several European countries, including Italy and Poland. The remaining EU countries are all 
ranked  in  the  top  50  of  the  IDI  list,  with  Bulgaria  and  Romania  closing  the  European 
ranking on places 51 and 52. 

Table 8: Overview of European countries mentioned in the IDI29 

EU Member State 

Index Score 

Rank 

Sweden 

Denmark 

Finland 

The Netherlands 

Luxembourg 

United Kingdom 

Germany 

France 

Austria 

Ireland 

Belgium 

8.34 

8.29 

8.04 

7.82 

7.76 

7.75 

7.39 

7.30 

7.10 

7.09 

6.89 

2 

3 

4 

6 

7 

10 

16 

18 

19 

20 

23 

International  Telecommunication  Union, 

29 
D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf, Table 2.2.  

"Measuring 

the 

Information  Society",  2012,  p.  21,  http://www.itu.int/en/ITU-

16 

 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

Estonia 

Slovenia 

Malta 

Spain 

Italy 

Poland 

Czech Republic 

Greece 

Lithuania 

Latvia 

Portugal 

Slovakia 

Hungary 

Croatia 

Cyprus 

Bulgaria 

Romania 

6.81 

6.70 

6.69 

6.62 

6.28 

6.19 

6.17 

6.14 

6.06 

6.06 

6.05 

5.86 

5.77 

5.75 

5.73 

5.20 

5.13 

24 

25 

26 

28 

29 

31 

32 

33 

35 

36 

37 

39 

41 

42 

44 

51 

52 

An important sub-factor from  the IDI is the "Access sub-factor",  which includes  indicators 
which measure ICT infrastructure and readiness, which form  the foundation for the usage 
of ICT and its impact30.  

An overview of the ranking of the EU countries in this list of the same 155 countries shows 
that  Luxembourg,  Germany,  Sweden,  the  United  Kingdom  and  The  Netherlands  score 
particularly well, all being ranked in the top 10 of the list. France and Malta remain within 
the  top  15  and  several  other  European  countries  are  ranked  within  the  top  30,  including 
Spain  and  Italy.  All  other  European  countries  remain  within  the  top  50  ranking,  with  the 
exception of Bulgaria and Romania. 

The overview shows that the main part of the selected sample countries for further analysis 
under WP 3 score particularly well in relation to access to ICT services. It may be expected 
that this will correspondingly also apply to access to cloud services. 

International  Telecommunication  Union, 

30 
D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf. 

"Measuring 

the 

Information  Society",  2012,  p.  37,  http://www.itu.int/en/ITU-

17 

 
 
 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

Table 9: Overview of European countries in the Access sub factor31 

EU Member State 

Index Score 

Rank 

Luxembourg 

Germany 

Sweden 

United Kingdom 

Denmark 

The Netherlands 

France 

Malta 

Austria 

Finland 

Belgium 

Ireland 

Slovenia 

Estonia 

Spain 

Italy 

Portugal 

Croatia 

Lithuania 

Greece 

Czech Republic 

Hungary 

Poland 

Cyprus 

Slovakia 

Latvia 

Bulgaria 

Romania 

8.87 

8.66 

8.50 

8.47 

8.37 

8.34 

7.92 

7.90 

7.88 

7.74 

7.72 

7.64 

7.29 

7.20 

7.12 

7.11 

6.94 

6.67 

6.60 

6.56 

6.53 

6.48 

6.46 

6.46 

6.32 

6.13 

5.97 

5.75 

3 

5 

6 

7 

9 

10 

14 

15 

16 

18 

19 

21 

26 

27 

29 

30 

32 

37 

39 

40 

41 

42 

43 

45 

47 

49 

52 

55 

31  International  Telecommunication  Union,  "Measuring  the  Information  Society",  2012,  p.  38,  http://www.itu.int/en/ITU-
D/Statistics/Documents/publications/mis2012/MIS2012_without_Annex_4.pdf, Table 2.6.  

18 

 
 
 
 
 
 
 
 
 
 
 
                                               
Methodology and sample country selection — Work Package 2 

3.  

  PROPOSAL FOR A SAMPLE OF REPRESENTATIVE EU JURISDICTIONS 

From  a  legal  perspective,  the  EU  countries  which  seem  to  offer  particularly  interesting 
information  in  terms  of  cloud  computing  contract  legislation,  relevant  case  law  or 
administrative  guidance,  are  Denmark,  France,  Germany,  Hungary,  Ireland,  Italy,  Latvia, 
Poland,  Sweden,  The  Netherlands  and  the  United  Kingdom.  A  recent  cloud  computing 
"regulatory scorecard" backs up the selection of several of the aforementioned countries, it 
being understood that only some EU Member States were investigated in this scorecard. In 
terms  of  law  applicable  to  cloud  contracts,  this  will  depend  on  whether  the  contract  is 
negotiated,  but  in  case  of  standard  contracts,  recent  research  indicates  that  the  laws  of 
England  are  often  chosen,  even  for  cloud  customers  not  residing  in  the  United  Kingdom, 
which  additionally  makes  the  United  Kingdom  a  very  interesting  choice  from  a  legal 
perspective. 

Several economic standards have been taken into account. The size of the ICT market and 
ICT  employment  obviously  form  a  good  indicator.  Investment  in  and  participation  by  the 
public sector is a good indication as well as the public sector is a driving force behind the 
development of cloud. In this sense, Germany and France have a high public cloud service 
market  value,  while  Italy,  Denmark,  The  Netherlands  and  the  US  know  a  high  degree  of 
cloud  implementation.  France,  the  United  Kingdom  and  Germany  further  lead  the  way  by 
establishing innovative public sector cloud initiatives.  

The  size  of  the  hosting  market  is  another  good  indicator.  In  a  limited  comparative  study 
between  14  European  countries,  it  appears  that  Germany,  the  United  Kingdom,  Poland, 
France  and  The  Netherlands  offer  the  biggest  hosting  markets,  both  in  relative  and 
absolute value. Italy, Spain and Sweden follow in this ranking.  

In a 55 country survey, Germany, France, the United Kingdom and Italy head the charts in 
relation to telecommunication services revenues, a good indicator for uptake of this kind of 
services  including  cloud.  Spain,  The  Netherlands  and  Poland  score  relatively  high  as  well, 
followed at a distance by Sweden, which is probably due to the limited market size.  

However,  Sweden  heads,  as  EU  country,  an  international  survey  regarding  ICT 
development  in  155  countries,  closely  followed  by  Denmark,  Finland,  The  Netherlands, 
Luxembourg  and  the  united  Kingdom.  Of  the  large  economies  of  the  EU,  Spain,  Italy  and 
Poland  circle  around  top  30  results.  In  the  same  survey,  access  to  the  ICT  services  was 
investigated, establishing Luxembourg, Germany, Sweden, the United Kingdom, Denmark, 
The Netherlands and France in the top 15 of the 155 countries investigated. Spain and Italy 
circle around the top 30 whilst Poland remains within the top 50. 

Based  on  the  above,  and  given  the  fact  that  the  selection  of  representative  countries 
should  offer  a  sufficient  representation  of  the  different  legal  traditions  across  Europe,  we 
come to the following conclusions and proposal for a sample of representative countries: 

Proposal 

Legal 
Tradition 

Argumentation in short 

Common 
Law 

1. The 
United 
Kingdom  

2. The 
United 
States 

19 

It  is  clear  that  with  the  United  Kingdom  and  the  U.S.  highly 
representative  countries  have  been  selected.  Although  figures 
for  the  U.S.  were  generally  not  cited  in  this  report  (the  report 
concentrates on EU countries), it is obvious that the U.S. are a 
leading actor in the development of cloud. The United Kingdom 
on its turn is represented in nearly all of the studies cited where 
it consistently occupies places in the top rankings. It has one of 
the most important ICT markets throughout the EU and a high 
percentage of employment in the ICT sector. Also from a legal 
perspective,  the  United  Kingdom  is  interesting  to  investigate. 
Ireland offers interesting results as well, but is deemed, on the 
basis of available numbers, less representative. 

 
 
 
 
 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

As the United Kingdom, Germany is represented in nearly all of 
the reports mentioned. As one of the economic heavyweights of 
Europe,  with  an  ICT  market  and  ICT  employment  fluctuating 
around the European average (in percentages), it also generally 
takes top positions in the rankings. Germany, more than other 
countries pertaining to this legal tradition (for example Austria), 
is  therefore  the  obvious  choice  for  the  countries  which  are 
influenced by the German law tradition. 

Civil  law  countries,  such  as  France,  Belgium,  The  Netherlands 
and  Luxembourg,  are  cited  in  several  of  the  investigated 
reports. France, of whom the Civil Code forms the basis of civil 
law  codes  all  across  Europe,  is  an  obvious  choice  from  a  legal 
point  of  view.  However,  France  also  scores  high  on  the 
economic  indices,  including  its  ICT  market  size  and  an  above-
average  ICT  employment  rate.  The  Netherlands,  scoring 
particularly  high  on  ICT  employment,  are  interesting  as  well, 
both  from  a  legal  point  of  view  with  interesting  input  on  cloud 
computing  contracts  legislation  and  administrative  guidance, 
and  on  the  economic  level  where  this  country  takes  high 
rankings  among  many  of  the  criteria  which  have  been 
investigated. 

For  the  Nordic  countries,  Denmark,  Finland  and  Sweden  are 
mentioned in several of the sources of information discussed in 
this  report.However,  when  comparing  these  three  countries,  it 
is obvious that Sweden outranks the other Nordic countries. Not 
only  this,  Sweden  on  itself  is  also  a  particularly  interesting 
country  as  it  occupies  top  rankings  in  international  studies 
relating to ICT market and access thereto, and has the largest 
ICT  market  share  on  GDP  (and  ICT  personnel)  according  to  a 
study  involving  20  EU  Member  States.  Further,  Sweden  offers 
particularly interesting information from the legal point of view. 
Sweden, as a Nordic law country, therefore is a very interesting 
country to investigate. 

Of the Southern European countries, mainly Italy and Spain are 
mentioned.  From  a  legal  point  of  view,  Italy  offers  the  most 
interesting  results.  Italy  also  ranks  higher  on  public  cloud 
market  figures,  hosting  market  size  and  telecommunications 
services  revenues.  IDI  rankings  are  a  neck-to-neck  race  with 
the two countries being ranked right before or after each other. 
On  this  basis,  our  conclusion  is  to  take  Italy  as  the 
representative country for  the Southern  Europe  countries.  This 
offers  the  advantage  to  also  include  a  Roman  law  tradition 
representative  in  the  sample  of  countries  investigated  under 
Work Package 3 of the Study. 

Several Eastern European countries, such as Bulgaria, Hungary, 
Latvia, Poland, Romania, Slovenia and Slovakia are cited in the 
economic  reports  discussed.  It  is  clear  from  these  reports  that 
Poland  takes  a  top  place  among  these  countries,  ranked  high 
on hosting market size, telecom revenues and ICT development 
index (certainly when compared to the other Eastern European 
countries). Also based on the legal input examination, Poland is 
therefore  selected  as  the  Eastern  European  law  tradition 
representative  (insofar  as  one  can  speak  of  such  a  legal 
tradition). 

3. 
Germany 

"German" 
Law 
tradition 

4. France  

5. The 
Netherlan
ds 

Civil Law 

6. 
Sweden 

Nordic 
Law 

7. Italy 

Southern 
European 
or  
"Roman" 
Law 

8. Poland 

Eastern 
European 
Law 

20 

 
 
 
 
 
 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

Annex 1: Schematic overview of the country report analysis  

21 

StrctureNature of obligationsCooperation obligationService levelsSubcoAuditdata privacyWarrantiesLiabilityTerm and terminationConsequences of terminationConcluding the contractOtherBelgiumBulgariaCyprusCzech RepublicDenmarkInteresting input on the application of legal rules on service levelsCloud guidance issued by Danish DPAEstoniaFinlandFranceInteresting case law on hyperlink referring to T&CCloud guidance issued by French DPAInteresting references to lawInteresting case lawGermanyInteresting input on incorportation of T&CInteresting references to the lawStrong focus on data privacy and leading roleVery interesting laws on possibility to limit liabilityInteresting input on consumerlawsInteresting input on consequencesGreeceHungaryInteresting input on lawsAdministrative guidance on the use of cloudItalyInteresing laws on T&CInteresting inputInteresting case lawInteresting case lawIrelandInteresting input by the Irish DPALatviaInteresting input by the Latvian DPAInteresting input by the Latvian DPALithuaniaLuxembourgInteresting case law on T&CInteresting laws in financial sector 
 
 
 
 
 
Methodology and sample country selection — Work Package 2 

22 

StrctureNature of obligationsCooperation obligationService levelsSubcoAuditdata privacyWarrantiesLiabilityTerm and terminationConsequences of terminationConcluding the contractOtherMaltaNetherlandsInteresting laws on notifying T&C to consumers and SMEsOpinion of the DPA on concluding a cloud contract with US providerInteresting input on limitations of liabilityInteresting information on concluding the contractPolandSpecific laws on incorporating T&CsAlready discussed in legal doctrine, hence on the legal agendaGuidelines of the DPA for use in public sectorInteresting information on concluding the contractPortugalRomaniaInteresting input on applicability of T&CInteresting information on applicable lawsSlovakiaGuidelines by the Slovak DPASloveniaSpainGuidelines by Spanish DPA, which also cover SLAsGuidelines by Spanish DPA which also cover subco requirementsSwedenInteresting guidelines in the financial sectorDecision by the DPA in this areaInteresting input on storage of accounting informationUKInteresting input on incorporation of T&CSpecific laws existGuidelines by the ICOInteresting laws on libaility limitationsInteresting laws apply 
 
 
 
 
 
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This  study  provides  an  overview  over  legislation,  case  law  and  administrative  guidelines 
applicable  to  cloud  computing  contracts.  It  explains  how  the  existing  specific  and/or 
general legal principles apply to certain key contractual issues. The study is carried out in 
three  work  packages.  The  first  work  package  provides  a  general  overview  over  relevant 
legislation, case law and administrative guidelines in relation to cloud computing contracts 
in 27 EU Member States and the U.S. level. Under work package 2, eight countries out of 
this  group  were  selected  to  be  further  analysed  during  work  package  3.  During  this  last 
phase, several key legal issues are subjected to an in-depth analysis. This input is further 
subjected  to  a  comparative  law  assessment  as  a  result  of  which  several  conclusions  are 
presented  in  relation  to  the  suitability  of  the  current  legal  framework  of  the  selected 
countries for cloud computing contracts. 

Cette  étude  fournit  un  aperçu  de  la  législation,  la  jurisprudence  et  les  directives 
administratives  applicables  aux  contrats  de  cloud  computing.  Elle  explique  comment  les 
règles,  spéciales  et/ou  générales,  de  droit  existantes  s'appliquent  à  certaines 
problématiques-clé  du  domaine  contractuel.  L'étude  est  réalisée  en  trois  modules  de 
travail.  Le  premier  module  fournit  un  aperçu  général  de  la  législation,  la  jurisprudence  et 
les directives administratives pertinentes en matière de contrats de cloud computing dans 
les  27  États  Membres  de  l'UE  et  aux  Etats-Unis.  Dans  le  module  de  travail  2,  huit  pays 
faisant partie de ce groupe ont été choisis afin d'être analysés davantage dans le cadre du 
module  de  travail  3.  Au  cours  de  cette  dernière  phase,  plusieurs  questions  juridiques 
essentielles  font  l'objet  d'une  analyse  approfondie.  Les  données  font  ensuite  l'objet  d'une 
évaluation  de  droit  comparé  à  la  suite  de  laquelle  plusieurs  conclusions  sont  présentées 
concernant la pertinence du cadre juridique actuel des pays sélectionnés pour les contrats 
de cloud computing. 

doi:10.2838/514307