Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2022/0047(COD)**

**PROPOSAL**

**Brussels, 25 February 2022**
**(OR. en)**

**6596/22**

**TELECOM 74**
**COMPET 122**
**MI 148**
**DATAPROTECT 51**
**JAI 248**
**PI 16**
**IA 21**
**CODEC 214**

From: Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director

date of receipt: 24 February 2022

To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council
of the European Union

No. Cion doc.: COM(2022) 68 final

Subject: Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND
OF THE COUNCIL on harmonised rules on fair access to and use of
data (Data Act)

Delegations will find attached document COM(2022) 68 final.

Encl.: COM(2022) 68 final

6596/22 RB/ek

## TREE.2.B EN

EUROPEAN

COMMISSION

Brussels, 23.2.2022
COM(2022) 68 final

2022/0047 (COD)

Proposal for a

**REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**on harmonised rules on fair access to and use of data**

**(Data Act)**

(Text with EEA relevance)

{SEC(2022) 81 final} - {SWD(2022) 34 final} - {SWD(2022) 35 final}

# **EN EN**

**EXPLANATORY MEMORANDUM**

**1.** **CONTEXT** **OF** **THE** **PROPOSAL**

**•** **Reasons for and objectives of the proposal**

This explanatory memorandum accompanies the proposal for a Regulation on harmonised
rules on fair access to and use of data (Data Act).

Data is a core component of the digital economy, and an essential resource to secure the green
and digital transitions. The volume of data generated by humans and machines has been
increasing exponentially in recent years. Most data are unused however, or its value is
concentrated in the hands of relatively few large companies. Low trust, conflicting economic
incentives and technological obstacles impede the full realisation of the potential of datadriven innovation. It is therefore crucial to unlock such potential by providing opportunities
for the reuse of data, as well as by removing barriers to the development of the European data
economy in compliance with European rules and fully respecting European values, and in line
with the mission to reduce the digital divide so that everyone benefits from these
opportunities. Ensuring greater balance in the distribution of the value from data in step with
the new wave of non-personal industrial data and the proliferation of products connected to
the Internet of Things means there is enormous potential for boosting a sustainable data
economy in Europe.

Regulating data access and use is a fundamental prerequisite for seizing the opportunities
presented by the digital age we live in. The President of the Commission, Ursula von der
Leyen, stated in her political guidelines for the 2019-2024 Commission that Europe must
‘ _balance the flow and use of data while preserving high privacy, security, safety and ethical_
_standards_ ’ [1] . The Commission Work Programme 2020 [2] set out several strategic objectives,
including the European strategy for data [3], adopted in February 2020. That strategy aims at
building a genuine single market for data and at making Europe a global leader in the dataagile economy. For this reason, the Data Act is a key pillar and the second major initiative
announced in the data strategy. In particular, it contributes to the creation of a cross-sectoral
governance framework for data access and use by legislating on matters that affect relations
between data economy actors, in order to provide incentives for horizontal data sharing across

sectors.

The European Council’s Conclusions of 21-22 October 2021 underlined ‘ _the importance of_
_making rapid progress on existing and future initiatives, in particular unlocking the value of_
_data in Europe, notably through a comprehensive regulatory framework that is conducive to_
_innovation and facilitates better data portability, fair access to data and ensures_
’ [4]
_interoperability_ . On 25 March 2021, the European Council reiterated ‘ _the importance of_
_better exploiting the potential of data and digital technologies for the benefit of the society_

1 Ursula von der Leyen, A Union that strives for more [- My agenda for Europe, Political guidelines for](https://ec.europa.eu/info/sites/default/files/political-guidelines-next-commission_en_0.pdf)
[the next European Commission 2019-2024, 16 July 2019](https://ec.europa.eu/info/sites/default/files/political-guidelines-next-commission_en_0.pdf)
2 [European Commission, Annexes to the Commission Work Programme 2020 - A Union that strives for](https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwjQ-fmluNjnAhVBC-wKHZGRBt8QFjAAegQIARAB&url=https%3A%2F%2Fec.europa.eu%2Finfo%2Ffiles%2F2020-commission-work-programme-annex-1_en&usg=AOvVaw23MKMPh4HaRF4NlfXJcc4G)
[more, COM(2020) 37, 29 January 2020](https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwjQ-fmluNjnAhVBC-wKHZGRBt8QFjAAegQIARAB&url=https%3A%2F%2Fec.europa.eu%2Finfo%2Ffiles%2F2020-commission-work-programme-annex-1_en&usg=AOvVaw23MKMPh4HaRF4NlfXJcc4G)
3 [COM/2020/66 final](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0066)
4 [European Council, European Council meeting (21-22 October 2021) - Conclusion EUCO 17/21, 2021,](https://www.consilium.europa.eu/media/52622/20211022-euco-conclusions-en.pdf)
p. 2.

# EN 1 EN

_and economy_ ’ [5] . On 1-2 October 2020, it stressed ‘ _the need to make high-quality data more_
_readily available and to promote and enable better sharing and pooling of data, as well as_
_interoperability’_ [6] . On cloud services, on 15 October 2020, the EU Member States
unanimously adopted a Joint Declaration on building the next generation cloud for businesses
and the public sector in the EU. This would require a next generation of EU cloud offering
that reaches the highest standards in in portability and interoperability, for example [7] .

The European Parliament resolution of 25 March 2021 on a European strategy for data urged
the Commission to present a data act to encourage and enable greater and fairer flow of data
in all sectors, from business-to-business, business-to-government, government-to-business
and government-to-government [8] . In its resolution of 25 March 2021, the European Parliament
also highlighted the need to create common European data spaces for the free flow of nonpersonal data across borders and sectors and between businesses, academia, relevant
stakeholders and the public sector. From this perspective, it encouraged the Commission to
clarify utilisation rights, especially in business-to-business and business-to-government
settings. It stressed that market imbalances arising from the concentration of data restrict
competition, increase market entry barriers and diminish wider data access and use.

In its resolution, the European Parliament also pointed out that business-to-business
contractual agreements do not necessarily guarantee adequate access to data for small and
medium-sized enterprises (SMEs). The reason for this is that there are disparities in
negotiation power and expertise. The European Parliament therefore stressed the need for
contracts to set out clear obligations and determine liability for accessing, processing, sharing
and storing data in order to limit its misuse.

As such, the Commission and EU Member States were asked to examine actors’ rights and
their obligations to access data they have been involved in generating and to improve their
awareness of, in particular, the right to access data, to port it, to urge another party to stop
using it, or to rectify or delete it, while also identifying the holders and delineating the nature
of such rights.

On the business-to-government front, the European Parliament requested that the Commission
set out the situations, conditions and incentives under which the private sector should be
obliged to make data available for use by the public sector, such as due to its necessity for the
organisation of data-driven public services, and also examine compulsory business-togovernment data sharing schemes, for instance in situations that are beyond people’s control.

In this context, the Commission puts forward the proposed **Data Act** with the **aim of**
**ensuring fairness in the allocation of value from data among actors in the data economy**
**and to foster access to and use of data** .

The proposal will help achieve the broader policy goals of ensuring EU businesses across all
sectors are in a position to innovate and compete, effectively empowering individuals with
respect to their data, and better equipping businesses and public sector bodies with a
proportionate and predictable mechanism to tackle major policy and societal challenges,

5 –
European Council, Statement of the members of the European Council meeting (25 March 2021)
[Statement SN 18/21, p. 4.](https://www.consilium.europa.eu/media/48976/250321-vtc-euco-statement-en.pdf)
6 [European Council, European Council meeting (1-2 October 2020) - Conclusion EUCO 13/20, 2020, p.](https://www.consilium.europa.eu/media/45910/021020-euco-final-conclusions.pdf)
5.
7 European Commission (2020). _[Commission welcomes Member States' declaration on EU cloud](https://digital-strategy.ec.europa.eu/en/news/commission-welcomes-member-states-declaration-eu-cloud-federation)_
_[federation](https://digital-strategy.ec.europa.eu/en/news/commission-welcomes-member-states-declaration-eu-cloud-federation)_, Press Release.
8 [European Parliament resolution of 25 March 2021 on a European strategy for data (2020/2217(INI))](https://www.europarl.europa.eu/doceo/document/TA-9-2021-0098_EN.pdf)

# EN 2 EN

including public emergencies and other exceptional situations. Businesses will be able to
easily switch their data and other digital assets between competing providers of cloud and
other data processing services. Data sharing within and between sectors of the economy
requires an interoperability framework of procedural and legislative measures to enhance trust
and improve efficiency. The creation of common European data spaces for strategic sectors of
the economy and domains of public interest will contribute to a genuine internal market for
data enabling data sharing and use across sectors. This Regulation therefore contributes to
these governance frameworks and infrastructure as well as data sharing outside data spaces.

The proposal’s specific objectives are outlined below.

–
**Facilitate access to and the use of data by consumers and businesses, while**
**preserving incentives to invest in ways of generating value through data.** This
includes increasing legal certainty around the sharing of data obtained from or
generated by the use of products or related services, as well as operationalising rules
to ensure fairness in data sharing contracts. The proposal **clarifies** the application of
relevant rights under Directive 96/9/EC on the legal protection of databases (the
**Database Directive** ) [9] to its provisions.

–
**Provide for the use by public sector bodies and Union institutions, agencies or**
**bodies of data held by enterprises in certain situations where there is an**
**exceptional data need.** This primarily concerns public emergencies, but also other
exceptional situations where compulsory business-to-government data sharing is
justified, in order to support evidence-based, effective, efficient, and performancedriven public policies and services.

–
**Facilitate switching between cloud and edge services.** Access to competitive and
interoperable data processing services is a precondition for a flourishing data
economy, in which data can be shared easily within and across sectoral ecosystems.
The level of trust in data processing services determines the uptake of such services
by users across sectors of the economy.

–
**Put in place safeguards against unlawful data transfer without notification by**
**cloud service providers** . This is because concerns have been raised about nonEU/European Economic Area (EEA) governments’ unlawful access to data. Such
safeguards should further enhance trust in the data processing services that
increasingly underpin the European data economy.

–
**Provide for the development of interoperability standards for data to be reused**
**between sectors**, in a bid to remove barriers to data sharing across domain-specific
common European data spaces, in consistency with sectoral interoperability
requirements, and between other data that are not within the scope of a specific
common European data space. The proposal also supports the setting of standards for
'smart contracts’. These are computer programs on electronic ledgers that execute
and settle transactions based on pre-determined conditions. They have the potential
to provide data holders and data recipients with guarantees that conditions for
sharing data are respected.

9 [OJ L 77, 27.3.1996, p. 20–28](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009)

# EN 3 EN

**•** **Consistency with existing policy provisions in the policy area**

This proposal is consistent with existing rules on the **processing of personal** **data** (including
the General Data Protection Regulation, (‘GDPR’) [10] ), and protecting the private life and the
**confidentiality of communications**, as well as any (personal and non-personal) data stored in
and accessed from terminal equipment (the ePrivacy Directive [11], to be replaced by the
ePrivacy Regulation currently the subject of legislative negotiations). This proposal
complements existing rights, specifically rights regarding data generated by a user’s product
connected to a publicly available electronic communications network.

The **Free Flow of Non-Personal Data Regulation** [12] put in place a key building block of the
European data economy, by ensuring that non-personal data can be stored, processed and
transferred anywhere in the Union. It also presented a self-regulatory approach to the problem
of ‘vendor lock-in’ at the level of providers of data processing services, by introducing codes
of conduct to facilitate switching data between cloud services (the industry-developed
‘Switching Cloud Providers and Porting Data (SWIPO)’ Codes of Conduct). This proposal
further builds on this, helping businesses and citizens to make the most of the right to switch
cloud providers and port data. It is also fully consistent with the Unfair Contract Terms
Directive as regards contract law [13] . With regard to cloud services, as the self-regulatory
approach seems not to have affected market dynamics significantly, this proposal presents a
regulatory approach to the problem highlighted in the Free Flow of Non-Personal Data
Regulation.

International data processing and storage and data transfers are governed by the GDPR,
World Trade Organization (WTO) trade commitments, the General Agreement on Trade in
Services (GATS) and bilateral trade agreements.

**Competition law** [14] is applicable in the context of amongst others merger control, data sharing
by companies or an abuse of a firm’s dominant position.

The **Database Directive** [15] provides for the _sui generis_ protection of databases that have been
created as a result of a substantial investment, even if the database itself is not an original
intellectual creation protected by copyright. Building on the substantial amount of case-law
interpreting the provisions of the Database Directive, this proposal addresses ongoing legal
uncertainties about whether databases containing data generated or obtained by the use of
products or related services, such as sensors, or other types of machine-generated data, would
be entitled to such protection.

The **Platform to Business Regulation** [16] imposes transparency obligations, requiring
platforms to describe for business users the data generated from the provision of the service.

The **Open Data Directive** [17] sets out minimum rules on the re-use of data held by the public
sector and of publicly funded research data made publicly available through repositories.

The **Interoperable Europe initiative** seeks to introduce a cooperative interoperability policy

10 [OJ L 119, 4.5.2016, p. 1–88.](https://eur-lex.europa.eu/eli/reg/2016/679/oj)
11 [OJ L 201, 31.7.2002, p. 37–47](https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX%3A32002L0058)
12 [OJ L 303, 28.11.2018, p. 59–68; SWIPO (2021), see](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1807) _[website](http://www.swipo.eu/)_ .
13 [OJ L 95, 21.4.1993, p. 29–34.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31993L0013)
14 [OJ L 335, 18.12.2010, p. 36–42.](https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=celex%3A32010R1217)
15 [OJ L 77, 27.3.1996, p. 20–28.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A31996L0009)
16 [OJ L 186, 11.7.2019, p. 57–79.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32019R1150)
17 [OJ L 172, 26.6.2019, p. 56–83.](https://eur-lex.europa.eu/eli/dir/2019/1024/oj)

# EN 4 EN

for a modernised public sector. The initiative arose out of the ISA [2], a Union funding
programme that ran from 2016 to 2021 and supported the development of digital solutions to
enable interoperable cross-border and cross-sector public services [18] .

This proposal complements the recently adopted **Data Governance Act,** which aims to
facilitate the voluntary sharing of data by individuals and businesses and harmonises
conditions for the use of certain public sector data, without altering material rights on the data
or established data access and usage rights [19] . It also complements the proposal for a **Digital**
**Markets Act**, which will require certain providers of core platform services identified as
‘gatekeepers’ to provide, inter alia, more effective portability of data generated through
business and end users’ activities [20] .

This proposal does not affect existing rules in the areas of intellectual property (except the
application of the _sui generis_ right of the Database Directive), competition, justice, and home
affairs and related (international) cooperation, trade-related obligations, or the legal protection
of trade secrets.

Legislative adaptations for promoting the digital transition are required in several areas. Clear
rules on access to specific data necessary for circularity and sustainability of certain products
throughout their life cycle and in non-exceptional situations will be established under the
European Digital Product Passport (as part of the Sustainable Products Initiative) [21] . Private
law rules are a key element in the overall framework. This Regulation therefore adapts
contract law and other rules to improve conditions for data reuse in the Internal Market, and to
prevent parties to contracts abusing imbalances in negotiating power to the detriment of
weaker parties.

As a horizontal proposal, the **Data Act** envisages **basic rules for all sectors** as regards the
rights to use data, such as in the areas of smart machinery or consumer goods. However, the
rights and obligations on data access and use have also been regulated to varying degrees at
sectoral level. The Data Act will not change any such existing legislation, but future
legislation in these areas should in principle be aligned with the horizontal principles of the
Data Act. Convergence with the Data Act’s horizontal rules should be assessed when sectoral
instruments are reviewed. This proposal leaves room for vertical legislation to set more
detailed rules for the achievement of sector-specific regulatory objectives.

Given existing sectoral legislation, with regard to the creation of the Green Deal data space,
the review [22] of the **INSPIRE Directive** [23] will enable further open availability and reuse of
spatial and environmental data. This initiative aims to make it easier for EU public authorities,
businesses and citizens to support the transition to a greener and carbon-neutral economy and
reducing administrative burden. It is expected to support reusable data services on a large
scale to assist in collecting, sharing, processing and analysing large volumes of data relevant
for assuring compliance with environmental legislation and priority European Green Deal
actions. It will streamline reporting and burden reduction through better reuse of existing data,
automatic reporting generation through data mining and business intelligence.

18 [OJ L 318, 4.12.2015, p. 1-16.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32015D2240)
19
[COM/2020/767 final.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020PC0767)
20 [OJ L 186, 11.7.2019, p. 57–79.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32019R1150)
21 [COM/2020/98 final.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2020:98:FIN&WT.mc_id=Twitter)
22 [GreenData4All initiative (REFIT) | Legislative train schedule | European Parliament (europa.eu)](https://www.europarl.europa.eu/legislative-train/theme-a-european-green-deal/file-revision-of-the-inspire-directive)
23 [OJ L 108, 25.4.2007, p. 1–14](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32007L0002&qid=1640002336584)

# EN 5 EN

The EU **Electricity Regulation** [24] requires transmission system operators to provide data to
regulators and for resource adequacy planning, while the EU **Electricity Directive** [25] provides
for the transparent and non-discriminatory access to data and mandates the Commission to
develop related interoperability requirements and procedures to facilitate this. The **Payment**
**Services Directive 2** [26] opens some types of payment transactional and account information
under certain conditions, thereby enabling business-to-business data sharing in the area of
Fintech. In the mobility and transport sector, there is a wide variety of data access and sharing
rules. Repair and maintenance information from motor vehicles and agricultural machines is
subject to specific data access/sharing obligations under **type approval legislation** [27] .
However, new rules are needed to ensure that existing vehicle type-approval legislation is fit
for the digital age and promotes the development of clean, connected and automated vehicles.
Building on the Data Act as a framework for the access and use of data, these rules will
address sector-specific challenges, including access to vehicle functions and resources.

In the framework of the **Intelligent Transport Systems Directive** [28], several delegated
regulations have been developed and will continue to be developed, notably to specify data
accessibility for road and multimodal passenger transport, in particular through National
Access Points. In air traffic management, non-operational data is important for improving
inter-modality and connectivity. Operational data related to air traffic management would
come under the specific regime defined in the framework of the **Single European Sky** [29] . In
vessel traffic monitoring, vessel related data (tracking and tracing) is important for improving
inter-modality and connectivity: this data falls under the specific regime defined in the
VTMIS Directive [30] . It also falls within the remit of the Digital Maritime System and
Services. [31] The proposal for a Regulation on the deployment of **alternative fuels**
**infrastructure** [32] specifies the relevant data types to be made available, in synergy with the
general framework established in the Intelligent Transport Systems Directive.

**•** **Consistency with other Union policies**

This proposal is in line with the Commission’s priorities to **make Europe fit for the digital**
**age** and to build a future-ready economy that works for people [33], where the digitalisation of
the internal market is characterised by a high degree of trust, security, safety and choice for
consumers. The digitalisation of the internal market is highly competitive thanks to a
framework that favours transparency, competition and innovation, and which is technology
neutral. It supports the **Recovery and Resilience Facility** [34], learning lessons from the
COVID-19 pandemic and the benefits of more easily accessible data where necessary.

This proposal supports the critical role of data in achieving the European **Green Deal**
**objectives** in various ways. First, by deepening the understanding of governments, businesses
and individuals of the impacts on society and the economy of products, services and materials

24 [OJ L 158, 14.6.2019, p. 54–124.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019R0943)
25 [OJ L 158, 14.6.2019, p. 125–199.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32019L0944)
26 [OJ L 337, 23.12.2015, p. 35–127](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2015.337.01.0035.01.ENG&toc=OJ%3AL%3A2015%3A337%3ATOC) [OJ L 337, 23.12.2015, p. 35–127.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2015.337.01.0035.01.ENG&toc=OJ%3AL%3A2015%3A337%3ATOC)
27 [OJ L 151, 14.6.2018, p. 1–218; OJ L 60, 2.3.2013, p. 1–51.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R0858)
28 [OJ L 207, 06.08.2010, p. 1-13.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv%3AOJ.L_.2010.207.01.0001.01.ENG&toc=OJ%3AL%3A2010%3A207%3ATOC)
29 [OJ L 96, 31.3.2004, p. 1–9; OJ L 96, 31.3.2004, p. 10–19;](https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32004R0549) [OJ L 96, 31.3.2004, p. 20–25.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32004R0551&qid=1640002564589)
30 [OJ L 308, 29.10.2014, p. 82–87.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32014L0100)
31 [OJ L 96, 12.4.2016, p. 46–49.](https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX:32016D0566)
32
[COM/2021/559 final](https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=COM:2021:559:FIN)

33
[COM/2020/67 final.](https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:52020DC0067)

34
[OJ L 57, 18.2.2021, p. 17.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32021R0241)

# EN 6 EN

across entire supply chains. Second, by mobilising the existing wealth of relevant private
sector data in order to tackle climate-, biodiversity-, pollution- [35] and natural resource-related
in line with objectives of the European Green Deal [36], the relevant Council conclusions [37] and
positions [38] of the European Parliament. Third, by closing knowledge gaps and managing
related crises through enhanced mitigation, preparedness, response and recovery actions.

In line with the **Industrial Strategy** [39], the proposal deals with highly strategic technologies
such as cloud computing and artificial intelligence systems: areas whose full potential the EU
has yet to harness, on the cusp of the next industrial data wave. It implements the **Strategy**
**for Data** [40] goal of businesses to being better able to innovate and compete on the basis of EU
values, and the principle of **free flow of data within the internal market** . It also tallies with
the **Intellectual Property Action Plan** [41] in which the Commission undertook to review the
Database Directive.

This proposal should also comply with the principles under the European Pillar of Social
Rights (EPSR) Action Plan [42] and the accessibility requirements of the Directive (EU)
2019/882 on the accessibility requirements for products and services [43] .

**2.** **LEGAL** **BASIS,** **SUBSIDIARITY** **AND** **PROPORTIONALITY**

**•** **Legal basis**

The legal basis for this proposal is Article 114 of the Treaty on the Functioning of the
European Union, whose objective is the establishment and functioning of the internal market
by enhancing measures for the approximation of national rules.

This proposal intends to further the completion of the internal market for data in which data
from the public sector, businesses and individuals is put to the best possible use, while
respecting rights in relation to such data and the investments made in order to collect it. The
provisions on switching between data processing services aim to establish fair and
competitive market conditions for the internal market in cloud, edge and related services.

The protection of confidential business data and trade secrets is an important aspect of the
well-functioning of the internal market, as is the case for other contexts in which services are
exchanged and goods are traded. This proposal ensures respect for trade secrets in the context
of data use between businesses or by consumers. The initiative will allow the Union to benefit
from the scale of the internal market, since products or related services are often developed
using data from different Member States, and later commercialised across the Union.

Some Member States have taken legislative action to address the problems described above,
in business-to-business and business-to-government scenarios, whereas others have not. This

35 [COM(2021) 400 final](https://ec.europa.eu/environment/pdf/zero-pollution-action-plan/communication_en.pdf)
36 [COM/2019/640 final](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2019%3A640%3AFIN)
37 [Digitalisation for the Benefit of the Environment, 11 December 2020](https://data.consilium.europa.eu/doc/document/ST-13957-2020-INIT/en/pdf) [, Council conclusions on the new](https://data.consilium.europa.eu/doc/document/ST-13852-2020-INIT/en/pdf)
[circular economy action plan, 11 December 2020, Council conclusions on the biodiversity strategy for 2030, 16](https://data.consilium.europa.eu/doc/document/ST-13852-2020-INIT/en/pdf)
[October 2020](https://data.consilium.europa.eu/doc/document/ST-11829-2020-INIT/en/pdf) [, Conclusions on the improvement of air quality, 5 March 2020](http://data.consilium.europa.eu/doc/document/ST-6650-2020-INIT/en/pdf)
38       [Climate and environmental emergency](https://www.europarl.europa.eu/doceo/document/TA-9-2019-0078_EN.html) Thursday, 28 November 2019 (europa.eu)
39
[COM/2021/350 final.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2021:350:FIN)

40
[COM/2020/66 final.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0066)

41
[COM/2020/760 final.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0760)

42
[COM/2021/102 final.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM:2021:102:FIN)
43 OJ L 151, 7.6.2019

# EN 7 EN

can lead to legislative fragmentation in the internal market and different rules and practices
across the Union and related costs by companies that would have to comply with different
regimes. It is therefore important to ensure that the proposed measures are applied
consistently across Member States.

**•** **Subsidiarity (for non-exclusive competence)**

Given the cross-border nature of the use of data and the many areas of impact of the Data Act,
the issues this proposal deals with cannot be effectively addressed at Member State level.
Fragmentation arising out of differences between national rules should be avoided, as it would
lead to higher transactional costs, lack of transparency, legal uncertainty and undesirable
forum shopping. Avoiding this is particularly important in all situations concerning the data
aspects of business-to-business relations, including fair contractual terms and the obligations
of manufacturers of Internet of Things products or related services, aspects that require
homogeneity of the framework throughout the Union.

An assessment of the cross-border aspects of data flows in the area of business-to-government
data sharing also demonstrates the need to act at Union level. Many private actors who hold
relevant data are multinational companies. These companies should not be confronted with a
fragmented legal regime.

Cloud computing services are rarely offered in one Member State only. In line with the GDPR
and the Free Flow of Non-Personal Data Regulation that enable consumers and businesses to
process personal and non-personal data anywhere they want in the Union, the cross-border
processing of data within the Union is essential for conducting business in the internal market.
It is therefore crucial that provisions on switching data processing services are applied at
Union level, to avoid harmful fragmentation in an otherwise unified market for data
processing services.

Only common action at the Union level can enable the achievement of the objectives laid
down in this proposal, including the creation of an innovative and competitive level-playing
field for data-driven businesses and the empowerment of citizens. This common action is a
confident step forward in the realisation of the vision to create a genuine internal market for
data.

**•** **Proportionality**

This proposal balances the rights and interests of affected stakeholders with the general
objective to facilitate wider use of data for a broad range of actors. It creates an enabling
framework that does not go beyond what is necessary to achieve the objectives. It addresses
existing barriers to fuller realisation of the potential value of data among businesses,
consumers and the public sector. It also sets out a framework for future sectoral rules to avoid
fragmentation and legal uncertainty. It clarifies existing rights and, where necessary, provides
access rights to data, thereby helping to develop an internal market for data sharing. The
initiative leaves a significant amount of flexibility for application at sector-specific level.

This proposal will give rise to financial and administrative costs. These are to be borne mainly
by national authorities, manufacturers and service providers, so that they comply with the
obligations set out in this Regulation. However, the exploration of different options and their
expected costs and benefits has resulted in a balanced design of the instrument. Similarly, the
costs to data users and holders will be counterbalanced by the value to be derived from
broader access and use of data, as well as the market uptake of novel services.

# EN 8 EN

**•** **Choice of the instrument**

The choice of a regulation was made because it is the best mechanism to serve the broader
policy goals of ensuring all businesses in the Union are put in a position to innovate and
compete, consumers are better able to take control of their data, and Union institutions,
agencies and bodies are better equipped to tackle major policy challenges, including public
emergencies. A regulation is necessary in light of the goal of comprehensive harmonisation
pursued by the proposal, in order to ensure legal certainty and transparency for economic
operators, including micro, small and medium-sized enterprises, and to provide legal and
natural persons in all Member States with the same level of legally enforceable rights and
obligations, to ensure consistent enforcement in all Member States, as well as effective
cooperation between the competent authorities of different Member States.

The proposal will strengthen the internal market for data by increasing legal certainty and
guaranteeing a uniform, horizontal and coherent legal framework.

**3.** **RESULTS** **OF** **EX-POST** **EVALUATIONS,** **STAKEHOLDER**
**CONSULTATIONS** **AND** **IMPACT** **ASSESSMENTS**

**•** **Ex-post evaluations/fitness checks of existing legislation**

This proposal partially builds on the latest evaluation of the Database Directive and the
Commission’s study supporting the review of the Directive [44] . The Database Directive
introduced, among other things, a specific _sui generis_ right to protect databases if the
producer of a database substantially invested in obtaining, verifying and presenting the data.
Since its first adoption, the Directive has been evaluated twice. Both evaluations have been
supplemented with Commission communications on policy for the data economy [45] .

The Court of Justice of the European Union has sharpened the understanding of substantial
investments in a database, clarifying that the _sui generis_ right aims at protecting the
investments in the collection, not the creation of data [46] as a by-product of another economic
activity. However, uncertainty remains as to the accidental or unintended application of the
_sui generis_ right to databases containing machine-generated data, i.e. data obtained from or
generated by the use of products or related services. There is a need to balance the policy
objectives of IP protection of such databases in the context of the data economy, where the
exclusivity of data as a non-rival good is in general considered an impediment to innovation.
To ensure consistency with the regulatory interventions proposed in this proposal, the
intervention on the _sui generis_ right specifically addresses the identified problematic
application of the _sui generis_ right in the Internet of Things context. The Commission is also
currently preparing the evaluation of Regulation (EU) 2018/1807, expected for November
2022. Initial reports by external contractors have shown the limited effect of the SWIPO
Codes of Conduct on cloud switching.

44 [COM/2017/09 final; SWD(2018) 146 final, section 5.4.2; Study to Support an Impact Assessment for](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2017%3A9%3AFIN)
the Review of the Database Directive.

45
[COM/2017/09 final;](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2017%3A9%3AFIN) [COM/2020/66 final;](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0066) [COM/2020/760 final.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A52020DC0760)
46 Fixtures Marketing Ltd v. Oy Veikkaus Ab (C-46/02, 9/11/2004), Fixtures Marketing Ltd v. Svenska
Spel Ab (C-338/02, 9/11/2004) British Horseracing Board Ltd v. William Hill (C-203/02, 9/11/2004) Fixtures
Marketing Ltd v. OPAP (C-444/02, 9/11/2004).

# EN 9 EN

**•** **Stakeholder consultations**

Extensive work was initiated during the mandate of the previous Commission on identifying
the problems that are preventing the Union from realising the full potential of the data-driven
innovation in the economy. The proposal builds on past consultation actions, such as the 2017
public consultation supporting the Commission Communication “ _Building a European data_
_economy_ ” [47], the 2017 public consultation on the evaluation of the Database Directive, the
2018 public consultation on the revision of the Directive on the reuse of public sector
information, the 2018 SME panel consultation on business-to-business data sharing principles
and guidance, and the Commission online open consultation on the Data Strategy [48] from
February to May 2020.

An Inception Impact Assessment was published on the Better Regulation portal on 28 May
2021 and was left open for feedback for 4 weeks. The Commission received 91 contributions
on the Better Regulation Portal [49], mainly from businesses.

A public online consultation on the Data Act was subsequently published on 3 June 2021. It
closed on 3 September 2021. The consultation addressed the items covered in the initiative
with relevant sections and questions. It targeted all types of stakeholders, gathering input on
data sharing, access and use in business-to-business and business-to-government contexts, on
consumer empowerment and data portability, the potential role of technical measures such as
smart contracts, user’s ability to switch between cloud services, intellectual property rights
(meaning the protection of databases), and safeguards for non-personal data in the
international context. After carrying out an in-depth analysis of the replies, the Commission
published a summary report on its website [50] .

In total, 449 contributions were received from 32 countries. Business entities constituted the
largest number of contributions, comprising 122 business associations and 105
companies/business organisations. In addition, 100 respondents were public authorities and 58
were individual members of the public. Generally, the responses confirmed that there is a
whole host of obstacles to effective and efficient data sharing in all types of data relations.

In the business-to-business context, despite data sharing between businesses being a common
practice, respondents who had experienced difficulties identified obstacles such as those of a

–
technical nature (formats, lack of standards 69%); outright refusal to grant access not linked
to competition concerns (55%) or the abuse of a contractual imbalance (44%). On contractual
issues, almost half of respondents were in favour of introducing an unfairness test (46%),
while more than double of those were not in favour (21%). SMEs showed strong support
(50%) for an unfairness test, and a significant number of large companies were also in favour
(41%) of it. Similarly, 46% of stakeholders across sectors showed support for general access
rules based on fair, reasonable and non-discriminatory terms (46%). 60% of respondents,
SMEs and micro companies in particular (78%), agreed that model contractual terms could
contribute to increased data sharing. 70% of stakeholders expressed the opinion that there is a
fairness problem with data generated in the Internet of Things context, and that manufacturers
of connected products or related services should not be able to decide unilaterally on what
happens to the data generated by such products. 79% of respondents considered that smart

47
[COM/2017/09 final.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2017%3A9%3AFIN)
48 European Commission (2020). _[Outcome of the online consultation on the European strategy for data.](https://ec.europa.eu/digital-single-market/news-redirect/683573)_
49
European Commission _[webpage](https://ec.europa.eu/info/law/better-regulation/have-your-say/initiatives/13045-Data-Act-&-amended-rules-on-the-legal-protection-of-databases_en)_ : _Have your Say - Data Act & amended rules on the legal protection of_
_databases._

50
European Commission (2021). _[Public consultation on the Data Act: summary report](https://digital-strategy.ec.europa.eu/en/public-consultation-data-act-summary-report)_ .

# EN 10 EN

contracts could be an effective tool to technically implement data access and use in the
context of co-generated Internet of Things data.

Legal uncertainty and barriers, commercial disincentives, and a lack of appropriate
infrastructure were amongst the main factors impeding business-to-government data sharing
identified by respondents. Almost all public authorities consider that action (Union or
Member State) on business-to-government data sharing is needed, compared to 80% of
academic/ research institutions and 38% of companies/ business organisations/ associations. A
clear majority of stakeholders (in particular citizens and public administrations) also
expressed the opinion that business-to-government data sharing should be compulsory, with
clear safeguards for specific use-cases with a clear public interest in emergencies and for
crisis management purposes, for official statistics, for environmental protection and for a
healthier society in general.

Respondents also confirmed the usefulness of a right to switchability for business users of
cloud computing services. As regards safeguards for non-personal data in international
contexts, 76% of respondents perceive potential access to data by foreign authorities on the
basis of foreign legislation as a risk to their organisation, with 19% indicating that it is a
major risk.

**•** **Collection and use of expertise**

The proposal was supported by several studies, workshops and other expert input:

–
**Study to support this Impact Assessment on enhancing the use of data in**
**Europe**, including interviews with targeted stakeholders. This included two crosssectoral workshops on business-to-business and business-to-government data
sharing, and a final validation workshop organised in spring 2021.

–
**Study on model contractual terms, fairness control in data sharing and in cloud**
**contracts and on data access rights** assessed, in particular, fairness aspects in
business-to-business data sharing relations and included targeted stakeholder
interviews and a validation workshop.

–
**Study on the economic detriment from** **unfair and unbalanced cloud computing**
**contracts** . This included an online survey of a sample of SMEs and start-ups using
cloud computing for conducting their business.

–
**Study on the switching of cloud service providers**, including a cross-sectorial
workshop in the second quarter of 2017.

–
**Study in support of the review of the Database Directive**, including interviews
with targeted stakeholders. It has assisted the Commission in the preparation of this
Impact Assessment to accompany the review of the Database Directive, in the
context of the Data Act and in the achievement of their intertwined objectives.

–
**Methodological support to impact assessment of using privately held data by**
**official statistics** . This exercise provides input to the assessment of the impact of
business-to-government data reuse in official statistics by developing a
methodological approach and by describing the benefits and costs of data reuse and
of selected use cases for different statistical domains and different types of private

# EN 11 EN

sector data. In addition, it contributes to ongoing research and deliberations in order
to arrive at a better understanding of business-to-government data sharing.

– **Webinars on personal data platforms and industrial data platforms** . Three
webinars were organised on 6, 7 and 8 May 2020. They brought together the relevant
data platform projects in the Big Data Value Public-Private Partnership portfolio.

– **High-Level Expert Group Report on Business-to-Government data sharing.** The
report provides an analysis of the problems surrounding business-to-government data
sharing in the Union and offers a set of recommendations in order to ensure scalable,
responsible and sustainable business-to-government data sharing in the public’s
interest. In addition to the recommendation to the Commission to explore the option
of a legal framework in this area, it presents several ways of encouraging private
companies to share their data. These include monetary and non-monetary incentives,
for example tax incentives, investment of public funds to support the development of
trusted technical tools and recognition schemes for data sharing.

–
**Workshop on labels for / certification of providers of technical solutions for**
**data exchange** . Around one hundred participants from businesses (including SMEs),
European institutions and academia attended this webinar on 12 May 2020. Its aim
was to examine whether a labelling or certification scheme could boost the business
uptake of data intermediaries by enhancing trust in the data ecosystem.

–
**Ten workshops organised between July and November 2019 involved more than**
**300 stakeholders and covered different sectors** . The workshops discussed how the
organisation of **data sharing in certain areas,** such as the environment, agriculture,
energy or healthcare, could benefit society as a whole, helping public actors to design
better policies and improve public services, as well as private actors to produce
services contributing to facing societal challenges.

– **SME Panel consultation.** This panel consultation, organised from October 2018 to
January 2019, sought the views of SMEs on the Commission’s business-to-business
data sharing principles and guidance issued in the Communication “ _Towards a_
_common European data space_ ” and accompanying the Staff Working Document of
25 April 2018 [51] .

– **The latest** **Eurobarometer on the impact of digitisation.** This general survey on
the daily lives of Europeans includes questions on people’s control over and sharing
of personal information. Published on 5 March 2020, it provides information on the
willingness of European citizens to share their personal information, including under
which conditions.

– **The** **Opinion of the European Data Protection Supervisor** (EDPS) on the
European strategy for data [52] . On 16 June 2020, the EDPS adopted Opinion 3/2020 on
the European strategy for data. The EDPS welcomed the strategy, considering its
implementation an opportunity to set an example for an alternative data economy
model.

51 [COM(2018)232 final; SWD(2018)125 final](https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A52018DC0232) of 25.4.2018.
52
[EDPS Opinion 3/2020 on the European Strategy for Data.](https://edps.europa.eu/sites/edp/files/publication/20-06-16_opinion_data_strategy_en.pdf)

# EN 12 EN

**•** **Impact assessment**

This proposal is accompanied by an impact assessment [53], submitted to the Regulatory
Scrutiny Board (RSB) on 29 September 2021 and 13 December 2021. On 21 January 2022,
the Board issued a positive opinion subject to reservations.

**•** **Regulatory fitness and simplification**

By clarifying that the _sui generis_ right under the Database Directive (Directive 96/9/EC) does
not apply to databases containing data generated or obtained by the use of products or related
services, the proposal ensures that the _sui generis_ right will not interfere with rights for
businesses and consumers to access and use data and to share data provided for in this
Regulation. The clarification will align the application of the _sui generis_ right with the aim of
the legislative proposal and have a positive impact on the uniform application of rules in the
internal market and for the data economy.

By facilitating data access and use, the Data Act should reduce burdens, both in the public
sector and among businesses, mainly as a result of lowering transaction costs and in terms of
efficiency gains. In the scope of the ‘one in, one out’ approach [54], which aims to minimise
burdens for citizens and businesses related to the implications and costs of applying
legislation, the Data Act’s estimated net administrative burden, based on the Impact
Assessment, accounts for benefits that are likely not only to offset but to far outweigh the
associated administrative costs.

**•** **Fundamental rights**

The proposal is in compliance with the Union legislation on the protection of personal data
and the privacy of communications and terminal equipment and envisages additional
safeguards where access to personal data can be concerned, as well as in cases subject to
intellectual property rights.

In Chapter II, a high level of consumer protection is reinforced with the new right to access
user generated data in situations previously not covered by Union law. The right to use and
dispose of lawfully acquired possessions is reinforced with a right to access data generated
from the use of an Internet of Things object. This way, the owner may benefit from a better
user experience and a wider range of, for example, repair and maintenance services. In the
context of consumer protection, the rights of children as vulnerable consumers deserve
specific attention and the rules of the Data Act will contribute to clarity about data access and
use situations.

The Internet of Things data access right for third parties upon the user’s request limits the
freedom to conduct a business and the freedom of contract of the manufacturer or designer of
a product or related service. The limitation is justified in order to enhance consumer
protection, in particular to promote consumer’s economic interests. The manufacturer or
designer of a product or related service typically has exclusive control over the use of data
generated by the use of a product or related service, which contributes to lock-in effects and
hinders market entry for players offering aftermarket services. The Internet of Things data
access right addresses this situation by further empowering consumers using products or
related services to meaningfully control how the data generated by their use of the product or
related service is used and enabling innovation by more market players. Consumers can

53 **[Links to final document and to the summary sheet to be added.]**
54
[SWD(2021) 305 final.](https://ec.europa.eu/info/sites/default/files/swd2021_305_en.pdf)

# EN 13 EN

therefore benefit from a wider choice in aftermarket services, such as repair and maintenance,
and no longer depend on only the manufacturer’s services. The proposal facilitates the
portability of the user’s data to third parties and thereby allows for a competitive offer of
aftermarket services, as well as broader data-based innovation and the development of
products or services unrelated to those initially purchased or subscribed to by the user.

The limitation of the manufacturer’s or designer’s freedom to contract and conduct a business
is proportionate and mitigated by the unaffected ability of the manufacturer or designer to also
use the data, insofar it is in line with the applicable legislation and the agreement with the
user. Furthermore, the manufacturer or designer will also benefit from the right to require
compensation for enabling third party access. The access right is without prejudice to the
existing access and portability rights for data subjects under the GDPR. Additional safeguards
ensure a proportionate use of the data by the third party.

In Chapter IV, a fair and effective system of protection against unfair contractual terms in
data sharing will contribute to micro, small or medium-sized enterprises’ ability to conduct a
business. This provision restricts the contractual freedom of companies in the scope to a
limited extent, as it only applies to unfair contractual terms related to data access and use
unilaterally imposed by one contractual party on a micro, small or medium-sized enterprise.
This is justified as SMEs are typically in a weaker bargaining position and often left with no
other choice than to accept ‘take it or leave it’ contractual terms. The contractual freedom
largely remains unaffected as only excessive and abusive terms are invalidated, and the
concluded contract, if possible, remains valid without the unfair terms. Furthermore, the
parties can still individually negotiate a specific contractual term [55] .

In Chapter V, the provisions related to business-to-government data sharing based on an
exceptional need will enhance the capacity of public authorities to take action for the common
good, such as to respond, prevent or assist in the recovery from a public emergency. The
private sector also stands to benefit from the streamlining of data request procedures.

In Chapter VI, the provisions on switching of data processing providers enhances the position
of the business customers and safeguards their choice to change provider. The limitation of
the right to conduct a business for data processing providers is justified because the new rules
address lock-in effects in the cloud and edge market and improve the choice for business users
and individuals of data processing services.

In Chapter X, the intervention on the _sui generis_ database right of the Database Directive does
not limit the IP protection therein. It rather contributes to legal certainty in cases where the
protection of the _sui generis_ right was previously unclear.

**4.** **BUDGETARY** **IMPLICATIONS**

This proposal will not have any budgetary implications.

55 For more explanations on the unfairness test and the principle of contractual freedom see Impact
Assessment, Annex 11.

# EN 14 EN

**5.** **OTHER** **ELEMENTS**

**•** **Implementation plans and monitoring, evaluation and reporting arrangements**

On a sectoral and macroeconomic level, the ongoing Data Market Monitoring study will help
track the economic impact of the current proposal on the growth of the data market in the
Union.

The impact on SMEs, namely their perception of problems related to data access and use, will
be assessed with an SME panel consultation five years after adoption of the Data Act.

Given the central role of the Common European Data Spaces in the implementation of the
European strategy for data, many of the effects of this initiative will be monitored on the level
of the sectoral data spaces, and the insights collected by the Data Spaces Support Centre to be
funded under the Digital Europe Programme. The regular interaction between the
Commission services, the Support Centre and the European Data Innovation Board (to be
established following the entry into force of the Data Governance Act) should serve as a
reliable source of information allowing in order to assess progress.

Finally, an evaluation will be launched four years after the adoption of the Data Act to
evaluate the initiative and to prepare further action as required.

**•** **Detailed explanation of the specific provisions of the proposal**

Chapter I defines the subject matter and scope of the regulation and sets out the definitions
used throughout the instrument.

Chapter II increases legal certainty for consumers and businesses to access data generated by
the products or related services they own, rent or lease. Manufacturers and designers have to
design the products in a way that makes the data easily accessible by default, and they will
have to be transparent on what data will be accessible and how to access them. Provisions in
this Chapter shall not affect the possibility for manufacturers to access and use data from
products or related services they offer, where agreed with the user. There is an obligation of
the data holder to make such data available to third parties upon the request of the user. Users
will be entitled to authorise the data holder to give access to the data to third party service
providers, such as providers of aftermarket services. Micro and small enterprises will be
exempt from these obligations.

Chapter III sets out general rules applicable to obligations to make data available. Where a
data holder is obliged to make data available to a data recipient as in Chapter II or in other
Union law or Member State legislation, the general framework addresses the conditions under
which data is made available and the compensation for making data available. Any conditions
will have to be fair and non-discriminatory, and any compensation will have to be reasonable,
without precluding other Union law or national legislation implementing Union law from
excluding compensation or providing for lower compensation for making data available. Any
compensation set for SMEs cannot exceed the costs incurred for making the data available,
unless otherwise specified in sectoral legislations. Dispute settlement bodies certified by the
Member States may assist parties that disagree on the compensation or conditions to come to
an agreement.

Chapter IV addresses unfairness of contractual terms in data sharing contracts between
businesses, in situations where a contractual term is unilaterally imposed by one party on a
micro, small or medium-sized enterprise. This Chapter guarantees that contractual agreements

# EN 15 EN

on data access and use do not take advantage of imbalances in negotiating power between the
contractual parties. The instrument of an unfairness test includes a general provision defining
unfairness of a data sharing-related contractual term complemented by a list of clauses that
are either always unfair or presumed to be unfair. In situations of unequal bargaining power,
that test protects the weaker contractual party in order to avoid unfair contracts. Such
unfairness impedes the use of data by both contractual parties. With that, the provisions
ensure a fairer allocation of value in the data economy [56] . Model contractual terms
recommended by the Commission may assist commercial parties in concluding contracts
based on fair terms.

Chapter V creates a harmonised framework for the use by public sector bodies and Union
institutions, agencies and bodies of data held by enterprises in situations where there is an
exceptional need for the data requested. The framework is based on an obligation to make
data available and would only apply in the case of public emergencies or in situations where
public sector bodies have an exceptional need to use certain data, but such data cannot be
obtained on the market, in a timely manner through enacting new legislation, or by means of
existing reporting obligations. In case of an exceptional need to respond to public emergency,
such as public health emergencies, or major natural or human-induced disasters, data would
be made available for free. In other cases of exceptional need, including to prevent or assist
the recovery from a public emergency, the data holder making the data available should be
entitled to compensation that include costs related to making the relevant data available plus a
reasonable margin. To ensure that the right to request data is not abused and that the public
sector remains accountable for its use, the requests for data would need to be proportionate,
clearly indicate the purpose to be achieved, and respect the interests of the enterprise making
the data available. Competent authorities would ensure the transparency and public
availability of all requests. They would also handle any resulting complaints.

Chapter VI introduces minimum regulatory requirements of contractual, commercial and
technical nature, imposed on providers of cloud, edge and other data processing services, to
enable switching between such services. In particular, the proposal ensures that customers
maintain functional equivalence (a minimum level of functionality) of the service after they
have switched to another service provider. The proposal contains an exception for technical
unfeasibility, but puts the burden of proof in this regard on the service provider. The proposal
does not mandate specific technical standards or interfaces. However, it requires services to
be compatible with European standards or open interoperability technical specifications where
these exist.

Chapter VII addresses unlawful third party access to non-personal data held in the Union by
data processing services offered on the Union market. The proposal does not affect the legal
basis of data access requests made to data held by EU citizens or businesses and is without
prejudice to the Union’s data protection and privacy framework. It offers specific safeguards,
by way of providers having to take all reasonable technical, legal and organisational measures
to prevent such access that conflicts with competing obligations to protect such data under
Union law, unless strict conditions are met. The Regulation complies with the Union’s
international commitments in the WTO and in bilateral trade agreements.

Chapter VIII provides for essential requirements to be complied with regarding
interoperability for operators of data spaces and data processing service providers as well as
for essential requirements for smart contracts. The Chapter also enables open interoperability

56 For more explanations on the unfairness test, including on the functioning in practice, see Annex 11 of
the Impact Assessment.

# EN 16 EN

specifications and European standards for the interoperability of data processing services to
promote a seamless multi-vendor cloud environment.

Chapter IX lays down the implementation and enforcement framework with competent
authorities in each Member State, including a complaints mechanism. The Commission shall
recommend voluntary model contractual terms on access to and use of data. Penalties shall
apply for infringements of this Regulation.

Chapter X contains a provision so that the _sui generis_ right established in Directive 96/9/EC
does not apply to databases containing data obtained from or generated by the use of a
product or related service to hinder the effective exercise of the right of users to access and
use data in accordance with Article 4 of this Regulation or of the right to share such data with
third parties in accordance with Article 5 of this Regulation.

Chapter XI allows the Commission to adopt delegated acts to introduce a monitoring
mechanism on switching charges imposed on providers of data processing services, to further
specify the essential requirements regarding interoperability, and to publish the reference of
open interoperability specifications and European standards for the interoperability of data
processing services . It also provides for the committee procedure to adopt implementing acts
to facilitate the adoption of common specifications for interoperability and smart contracts
where harmonised standards do not exist or are insufficient to ensure the conformity with
essential requirements. The proposal also clarifies the relation to other Union legal acts
governing data sharing rights and obligations.

# EN 17 EN

2022/0047 (COD)

Proposal for a

**REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL**

**on harmonised rules on fair access to and use of data**

**(Data Act)**

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee [57],

Having regard to the opinion of the Committee of the Regions [58],

Acting in accordance with the ordinary legislative procedure,

Whereas:

(1) In recent years, data-driven technologies have had transformative effects on all sectors
of the economy. The proliferation in products connected to the Internet of Things in
particular has increased the volume and potential value of data for consumers,
businesses and society. High quality and interoperable data from different domains
increase competitiveness and innovation and ensure sustainable economic growth. The
same dataset may potentially be used and reused for a variety of purposes and to an
unlimited degree, without any loss in its quality or quantity.

(2) Barriers to data sharing prevent an optimal allocation of data to the benefit of society.
These barriers include a lack of incentives for data holders to enter voluntarily into
data sharing agreements, uncertainty about rights and obligations in relation to data,
costs of contracting and implementing technical interfaces, the high level of
fragmentation of information in data silos, poor metadata management, the absence of
standards for semantic and technical interoperability, bottlenecks impeding data
access, a lack of common data sharing practices and abuse of contractual imbalances
with regards to data access and use.

57 OJ C,, p. .
58 OJ C,, p. .

# EN 18 EN

(3) In sectors characterised by the presence of micro, small and medium-sized enterprises,
there is often a lack of digital capacities and skills to collect, analyse and use data, and
access is frequently restricted where one actor holds it in the system or due to a lack of
interoperability between data, between data services or across borders.

(4) In order to respond to the needs of the digital economy and to remove barriers to a
well-functioning internal market for data, it is necessary to lay down a harmonised
framework specifying who, other than the manufacturer or other data holder is entitled
to access the data generated by products or related services, under which conditions
and on what basis. Accordingly, Member States should not adopt or maintain
additional national requirements on those matters falling within the scope of this
Regulation, unless explicitly provided for in this Regulation, since this would affect
the direct and uniform application of this Regulation.

(5) This Regulation ensures that users of a product or related service in the Union can
access, in a timely manner, the data generated by the use of that product or related
service and that those users can use the data, including by sharing them with third
parties of their choice. It imposes the obligation on the data holder to make data
available to users and third parties nominated by the users in certain circumstances. It
also ensures that data holders make data available to data recipients in the Union under
fair, reasonable and non-discriminatory terms and in a transparent manner. Private law
rules are key in the overall framework of data sharing. Therefore, this Regulation
adapts rules of contract law and prevents the exploitation of contractual imbalances
that hinder fair data access and use for micro, small or medium-sized enterprises
within the meaning of Recommendation 2003/361/EC. This Regulation also ensures
that data holders make available to public sector bodies of the Member States and to
Union institutions, agencies or bodies, where there is an exceptional need, the data that
are necessary for the performance of tasks carried out in the public interest. In
addition, this Regulation seeks to facilitate switching between data processing services
and to enhance the interoperability of data and data sharing mechanisms and services
in the Union. This Regulation should not be interpreted as recognising or creating any
legal basis for the data holder to hold, have access to or process data, or as conferring
any new right on the data holder to use data generated by the use of a product or
related service. Instead, it takes as its starting point the control that the data holder
effectively enjoys, de facto or de jure, over data generated by products or related
services.

(6) Data generation is the result of the actions of at least two actors, the designer or
manufacturer of a product and the user of that product. It gives rise to questions of
fairness in the digital economy, because the data recorded by such products or related
services are an important input for aftermarket, ancillary and other services. In order to
realise the important economic benefits of data as a non-rival good for the economy
and society, a general approach to assigning access and usage rights on data is
preferable to awarding exclusive rights of access and use.

(7) The fundamental right to the protection of personal data is safeguarded in particular
under Regulation (EU) 2016/679 and Regulation (EU) 2018/1725. Directive
2002/58/EC additionally protects private life and the confidentiality of
communications, including providing conditions to any personal and non-personal
data storing in and access from terminal equipment. These instruments provide the
basis for sustainable and responsible data processing, including where datasets include

# EN 19 EN

a mix of personal and non-personal data. This Regulation complements and is without
prejudice to Union law on data protection and privacy, in particular Regulation (EU)
2016/679 and Directive 2002/58/EC. No provision of this Regulation should be
applied or interpreted in such a way as to diminish or limit the right to the protection
of personal data or the right to privacy and confidentiality of communications.

(8) The principles of data minimisation and data protection by design and by default are
essential when processing involves significant risks to the fundamental rights of
individuals. Taking into account the state of the art, all parties to data sharing,
including where within scope of this Regulation, should implement technical and
organisational measures to protect these rights. Such measures include not only
pseudonymisation and encryption, but also the use of increasingly available
technology that permits algorithms to be brought to the data and allow valuable
insights to be derived without the transmission between parties or unnecessary
copying of the raw or structured data themselves.

(9) This Regulation complements and is without prejudice to Union law aiming to
promote the interests of consumers and to ensure a high level of consumer protection,
to protect their health, safety and economic interests, in particular Directive
2005/29/EC of the European Parliament and of the Council [59], Directive 2011/83/EU of
the European Parliament and of the Council [60] and Directive 93/13/EEC of the
European Parliament and of the Council [61] .

(10) This Regulation is without prejudice to Union legal acts providing for the sharing of,
the access to and the use of data for the purpose of prevention, investigation, detection
or prosecution of criminal offences or the execution of criminal penalties, or for
customs and taxation purposes, irrespective of the legal basis under the Treaty on the
Functioning of the European Union on which basis they were adopted. Such acts
include Regulation (EU) 2021/784 of the European Parliament and of the Council of
29 April 2021 on addressing the dissemination of terrorist content online, the [eevidence proposals [COM(2018) 225 and 226] once adopted], the [Proposal for] a
Regulation of the European Parliament and of the Council on a Single Market For
Digital Services (Digital Services Act) and amending Directive 2000/31/EC, as well as
international cooperation in this context in particular on the basis of the Council of
Europe 2001 Convention on Cybercrime (“Budapest Convention”). This Regulation is
without prejudice to the competences of the Member States regarding activities
concerning public security, defence and national security in accordance with Union

59 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair
business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC,
Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation
(EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’)
(OJ L 149, 11.6.2005, p. 22).
60 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer
rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the
Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of
the Council.
61 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. Directive (EU)
2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive
93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council
as regards the better enforcement and modernisation of Union consumer protection rules.

# EN 20 EN

law, and activities from customs on risk management and in general, verification of
compliance with the Customs Code by economic operators.

(11) Union law setting physical design and data requirements for products to be placed on
the Union market should not be affected by this Regulation.

(12) This Regulation complements and is without prejudice to Union law aiming at setting
accessibility requirements on certain products and services, in particular Directive
2019/882 [62] .

(13) This Regulation is without prejudice to the competences of the Member States
regarding activities concerning public security, defence and national security in
accordance with Union law, and activities from customs on risk management and in
general, verification of compliance with the Customs Code by economic operators.

(14) Physical products that obtain, generate or collect, by means of their components, data
concerning their performance, use or environment and that are able to communicate
that data via a publicly available electronic communications service (often referred to
as the Internet of Things) should be covered by this Regulation. Electronic
communications services include land-based telephone networks, television cable
networks, satellite-based networks and near-field communication networks. Such
products may include vehicles, home equipment and consumer goods, medical and
health devices or agricultural and industrial machinery. The data represent the
digitalisation of user actions and events and should accordingly be accessible to the
user, while information derived or inferred from this data, where lawfully held, should
not be considered within scope of this Regulation. Such data are potentially valuable
to the user and support innovation and the development of digital and other services
protecting the environment, health and the circular economy, in particular though
facilitating the maintenance and repair of the products in question.

(15) In contrast, certain products that are primarily designed to display or play content, or
to record and transmit content, amongst others for the use by an online service should
not be covered by this Regulation. Such products include, for example, personal
computers, servers, tablets and smart phones, cameras, webcams, sound recording
systems and text scanners. They require human input to produce various forms of
content, such as text documents, sound files, video files, games, digital maps.

(16) It is necessary to lay down rules applying to connected products that incorporate or are
interconnected with a service in such a way that the absence of the service would
prevent the product from performing its functions. Such related services can be part of
the sale, rent or lease agreement, or such services are normally provided for products
of the same type and the user could reasonably expect them to be provided given the
nature of the product and taking into account any public statement made by or on
behalf of the seller, renter, lessor or other persons in previous links of the chain of
transactions, including the manufacturer. These related services may themselves
generate data of value to the user independently of the data collection capabilities of
the product with which they are interconnected. This Regulation should also apply to a
related service that is not supplied by the seller, renter or lessor itself, but is supplied,
under the sales, rental or lease contract, by a third party. In the event of doubt as to

62 Directive (EU) 2019/882 of the European Parliament and of the Council of 17 April 2019 on the
accessibility requirements for products and services OJ L 151, 7.6.2019

# EN 21 EN

whether the supply of service forms part of the sale, rent or lease contract, this
Regulation should apply.

(17) Data generated by the use of a product or related service include data recorded
intentionally by the user. Such data include also data generated as a by-product of the
user’s action, such as diagnostics data, and without any action by the user, such as
when the product is in ‘standby mode’, and data recorded during periods when the
product is switched off. Such data should include data in the form and format in which
they are generated by the product, but not pertain to data resulting from any software
process that calculates derivative data from such data as such software process may be
subject to intellectual property rights.

(18) The user of a product should be understood as the legal or natural person, such as a
business or consumer, which has purchased, rented or leased the product. Depending
on the legal title under which he uses it, such a user bears the risks and enjoys the
benefits of using the connected product and should enjoy also the access to the data it
generates. The user should therefore be entitled to derive benefit from data generated
by that product and any related service.

(19) In practice, not all data generated by products or related services are easily accessible
to their users, and there are often limited possibilities for the portability of data
generated by products connected to the Internet of Things. Users are unable to obtain
data necessary to make use of providers of repair and other services, and businesses
are unable to launch innovative, more efficient and convenient services. In many
sectors, manufacturers are often able to determine, through their control of the
technical design of the product or related services, what data are generated and how
they can be accessed, even though they have no legal right to the data. It is therefore
necessary to ensure that products are designed and manufactured and related services
are provided in such a manner that data generated by their use are always easily
accessible to the user.

(20) In case several persons or entities own a product or are party to a lease or rent
agreement and benefit from access to a related service, reasonable efforts should be
made in the design of the product or related service or the relevant interface so that all
persons can have access to data they generate. Users of products that generate data
typically require a user account to be set up. This allows for identification of the user
by the manufacturer as well as a means to communicate to exercise and process data
access requests. Manufacturers or designers of a product that is typically used by
several persons should put in place the necessary mechanism that allow separate user
accounts for individual persons, where relevant, or the possibility for several persons
to use the same user account. Access should be granted to the user upon simple request
mechanisms granting automatic execution, not requiring examination or clearance by
the manufacturer or data holder. This means that data should only be made available
when the user actually wants this. Where automated execution of the data access
request is not possible, for instance, via a user account or accompanying mobile
application provided with the product or service, the manufacturer should inform the
user how the data may be accessed.

(21) Products may be designed to make certain data directly available from an on-device
data storage or from a remote server to which the data are communicated. Access to
the on-device data storage may be enabled via cable-based or wireless local area

# EN 22 EN

networks connected to a publicly available electronic communications service or a
mobile network. The server may be the manufacturer’s own local server capacity or
that of a third party or a cloud service provider who functions as data holder. They
may be designed to permit the user or a third party to process the data on the product
or on a computing instance of the manufacturer.

(22) Virtual assistants play an increasing role in digitising consumer environments and
serve as an easy-to-use interface to play content, obtain information, or activate
physical objects connected to the Internet of Things. Virtual assistants can act as a
single gateway in, for example, a smart home environment and record significant
amounts of relevant data on how users interact with products connected to the Internet
of Things, including those manufactured by other parties and can replace the use of
manufacturer-provided interfaces such as touchscreens or smart phone apps. The user
may wish to make available such data with third party manufacturers and enable novel
smart home services. Such virtual assistants should be covered by the data access right
provided for in this Regulation also regarding data recorded before the virtual
assistant’s activation by the wake word and data generated when a user interacts with a
product via a virtual assistant provided by an entity other than the manufacturer of the
product. However, only the data stemming from the interaction between the user and
product through the virtual assistant falls within the scope of this Regulation. Data
produced by the virtual assistant unrelated to the use of a product is not the object of
this Regulation.

(23) Before concluding a contract for the purchase, rent, or lease of a product or the
provision of a related service, clear and sufficient information should be provided to
the user on how the data generated may be accessed. This obligation provides
transparency over the data generated and enhances the easy access for the user. This
obligation to provide information does not affect the obligation for the controller to
provide information to the data subject pursuant to Article 12, 13 and 14 of
Regulation 2016/679.

(24) This Regulation imposes the obligation on data holders to make data available in
certain circumstances. Insofar as personal data are processed, the data holder should be
a controller under Regulation (EU) 2016/679. Where users are data subjects, data
holders should be obliged to provide them access to their data and to make the data
available to third parties of the user’s choice in accordance with this Regulation.
However, this Regulation does not create a legal basis under Regulation (EU)
2016/679 for the data holder to provide access to personal data or make it available to
a third party when requested by a user that is not a data subject and should not be
understood as conferring any new right on the data holder to use data generated by the
use of a product or related service. This applies in particular where the manufacturer is
the data holder. In that case, the basis for the manufacturer to use non-personal data
should be a contractual agreement between the manufacturer and the user. This
agreement may be part of the sale, rent or lease agreement relating to the product. Any
contractual term in the agreement stipulating that the data holder may use the data
generated by the user of a product or related service should be transparent to the user,
including as regards the purpose for which the data holder intends to use the data. This
Regulation should not prevent contractual conditions, whose effect is to exclude or
limit the use of the data, or certain categories thereof, by the data holder. This
Regulation should also not prevent sector-specific regulatory requirements under

# EN 23 EN

Union law, or national law compatible with Union law, which would exclude or limit
the use of certain such data by the data holder on well-defined public policy grounds.

(25) In sectors characterised by the concentration of a small number of manufacturers
supplying end users, there are only limited options available to users with regard to
sharing data with those manufacturers. In such circumstances, contractual agreements
may be insufficient to achieve the objective of user empowerment. The data tends to
remain under the control of the manufacturers, making it difficult for users to obtain
value from the data generated by the equipment they purchase or lease. Consequently,
there is limited potential for innovative smaller businesses to offer data-based
solutions in a competitive manner and for a diverse data economy in Europe. This
Regulation should therefore build on recent developments in specific sectors, such as
the Code of Conduct on agricultural data sharing by contractual agreement. Sectoral
legislation may be brought forward to address sector-specific needs and objectives.
Furthermore, the data holder should not use any data generated by the use of the
product or related service in order to derive insights about the economic situation of
the user or its assets or production methods or the use in any other way that could
undermine the commercial position of the user on the markets it is active on. This
would, for instance, involve using knowledge about the overall performance of a
business or a farm in contractual negotiations with the user on potential acquisition of
the user’s products or agricultural produce to the user’s detriment, or for instance,
using such information to feed in larger databases on certain markets in the aggregate
(,e.g. databases on crop yields for the upcoming harvesting season) as such use could
affect the user negatively in an indirect manner. The user should be given the
necessary technical interface to manage permissions, preferably with granular
permission options (such as “allow once” or “allow while using this app or service”),
including the option to withdraw permission.

(26) In contracts between a data holder and a consumer as a user of a product or related
service generating data, Directive 93/13/EEC applies to the terms of the contract to
ensure that a consumer is not subject to unfair contractual terms. For unfair contractual
terms unilaterally imposed on a micro, small or medium-sized enterprise as defined in
Article 2 of the Annex to Recommendation 2003/361/EC [63], this Regulation provides
that such unfair terms should not be binding on that enterprise.

(27) The data holder may require appropriate user identification to verify the user’s
entitlement to access the data. In the case of personal data processed by a processor on
behalf of the controller, the data holder should ensure that the access request is
received and handled by the processor.

(28) The user should be free to use the data for any lawful purpose. This includes providing
the data the user has received exercising the right under this Regulation to a third party
offering an aftermarket service that may be in competition with a service provided by
the data holder, or to instruct the data holder to do so. The data holder should ensure
that the data made available to the third party is as accurate, complete, reliable,
relevant and up-to-date as the data the data holder itself may be able or entitled to
access from the use of the product or related service. Any trade secrets or intellectual
property rights should be respected in handling the data. It is important to preserve

63 Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small
and medium-sized enterprises

# EN 24 EN

incentives to invest in products with functionalities based on the use of data from
sensors built into that product. The aim of this Regulation should accordingly be
understood as to foster the development of new, innovative products or related
services, stimulate innovation on aftermarkets, but also stimulate the development of
entirely novel services making use of the data, including based on data from a variety
of products or related services. At the same time, it aims to avoid undermining the
investment incentives for the type of product from which the data are obtained, for
instance, by the use of data to develop a competing product.

(29) A third party to whom data is made available may be an enterprise, a research
organisation or a not-for-profit organisation. In making the data available to the third
party, the data holder should not abuse its position to seek a competitive advantage in
markets where the data holder and third party may be in direct competition. The data
holder should not therefore use any data generated by the use of the product or related
service in order to derive insights about the economic situation of the third party or its
assets or production methods or the use in any other way that could undermine the
commercial position of the third party on the markets it is active on.

(30) The use of a product or related service may, in particular when the user is a natural
person, generate data that relates to an identified or identifiable natural person (the
data subject). Processing of such data is subject to the rules established under
Regulation (EU) 2016/679, including where personal and non-personal data in a data
set are inextricably linked [64] . The data subject may be the user or another natural
person. Personal data may only be requested by a controller or a data subject. A user
who is the data subject is under certain circumstances entitled under Regulation (EU)
2016/679 to access personal data concerning them, and such rights are unaffected by
this Regulation. Under this Regulation, the user who is a natural person is further
entitled to access all data generated by the product, personal and non-personal. Where
the user is not the data subject but an enterprise, including a sole trader, and not in
cases of shared household use of the product, the user will be a controller within the
meaning of Regulation (EU) 2016/679. Accordingly, such a user as controller
intending to request personal data generated by the use of a product or related service
is required to have a legal basis for processing the data under Article 6(1) of
Regulation (EU) 2016/679, such as the consent of the data subject or legitimate
interest. This user should ensure that the data subject is appropriately informed of the
specified, explicit and legitimate purposes for processing those data, and how the data
subject may effectively exercise their rights. Where the data holder and the user are
joint controllers within the meaning of Article 26 of Regulation (EU) 2016/679, they
are required to determine, in a transparent manner by means of an arrangement
between them, their respective responsibilities for compliance with that Regulation. It
should be understood that such a user, once data has been made available, may in turn
become a data holder, if they meet the criteria under this Regulation and thus become
subject to the obligations to make data available under this Regulation.

(31) Data generated by the use of a product or related service should only be made
available to a third party at the request of the user. This Regulation accordingly
complements the right provided under Article 20 of Regulation (EU) 2016/679. That
Article provides for a right of data subjects to receive personal data concerning them
in a structured, commonly used and machine-readable format, and to port those data to

64 [OJ L 303, 28.11.2018, p. 59–68.](https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32018R1807)

# EN 25 EN

other controllers, where those data are processed on the basis of Article 6(1), point (a),
or Article 9(2), point (a), or of a contract pursuant to Article 6(1), point (b). Data
subjects also have the right to have the personal data transmitted directly from one
controller to another, but only where technically feasible. Article 20 specifies that it
pertains to data provided by the data subject but does not specify whether this
necessitates active behaviour on the side of the data subject or whether it also applies
to situations where a product or related service by its design observes the behaviour of
a data subject or other information in relation to a data subject in a passive manner.
The right under this Regulation complements the right to receive and port personal
data under Article 20 of Regulation (EU) 2016/679 in several ways. It grants users the
right to access and make available to a third party to any data generated by the use of a
product or related service, irrespective of its nature as personal data, of the distinction
between actively provided or passively observed data, and irrespective of the legal
basis of processing. Unlike the technical obligations provided for in Article 20 of
Regulation (EU) 2016/679, this Regulation mandates and ensures the technical
feasibility of third party access for all types of data coming within its scope, whether
personal or non-personal. It also allows the data holder to set reasonable compensation
to be met by third parties, but not by the user, for any cost incurred in providing direct
access to the data generated by the user’s product. If a data holder and third party are
unable to agree terms for such direct access, the data subject should be in no way
prevented from exercising the rights contained in Regulation (EU) 2016/679,
including the right to data portability, by seeking remedies in accordance with that
Regulation. It is to be understood in this context that, in accordance with Regulation
(EU) 2016/679, a contractual agreement does not allow for the processing of special
categories of personal data by the data holder or the third party.

(32) Access to any data stored in and accessed from terminal equipment is subject to
Directive 2002/58/EC and requires the consent of the subscriber or user within the
meaning of that Directive unless it is strictly necessary for the provision of an
information society service explicitly requested by the user or subscriber (or for the
sole purpose of the transmission of a communication). Directive 2002/58/EC
(‘ePrivacy Directive’) (and the proposed ePrivacy Regulation) protect the integrity of
the user's terminal equipment as regards the use of processing and storage capabilities
and the collection of information. Internet of Things equipment is considered terminal
equipment if it is directly or indirectly connected to a public communications network.

(33) In order to prevent the exploitation of users, third parties to whom data has been made
available upon request of the user should only process the data for the purposes agreed
with the user and share it with another third party only if this is necessary to provide
the service requested by the user.

(34) In line with the data minimisation principle, the third party should only access
additional information that is necessary for the provision of the service requested by
the user. Having received access to data, the third party should process it exclusively
for the purposes agreed with the user, without interference from the data holder. It
should be as easy for the user to refuse or discontinue access by the third party to the
data as it is for the user to authorise access. The third party should not coerce, deceive
or manipulate the user in any way, by subverting or impairing the autonomy, decisionmaking or choices of the user, including by means of a digital interface with the user.
in this context, third parties should not rely on so-called dark patterns in designing
their digital interfaces. Dark patterns are design techniques that push or deceive

# EN 26 EN

consumers into decisions that have negative consequences for them. These
manipulative techniques can be used to persuade users, particularly vulnerable
consumers, to engage in unwanted behaviours, and to deceive users by nudging them
into decisions on data disclosure transactions or to unreasonably bias the decisionmaking of the users of the service, in a way that subverts and impairs their autonomy,
decision-making and choice. Common and legitimate commercial practices that are in
compliance with Union law should not in themselves be regarded as constituting dark
patterns. Third parties should comply with their obligations under relevant Union law,
in particular the requirements set out in Directive 2005/29/EC, Directive 2011/83/EU,
Directive 2000/31/EC and Directive 98/6/EC.

(35) The third party should also refrain from using the data to profile individuals unless
these processing activities are strictly necessary to provide the service requested by the
user. The requirement to delete data when no longer required for the purpose agreed
with the user complements the right to erasure of the data subject pursuant to Article
17 of Regulation 2016/679. Where the third party is a provider of a data
intermediation service within the meaning of [Data Governance Act], the safeguards
for the data subject provided for by that Regulation apply. The third party may use the
data to develop a new and innovative product or related service but not to develop a
competing product.

(36) Start-ups, small and medium-sized enterprises and companies from traditional sectors
with less-developed digital capabilities struggle to obtain access to relevant data. This
Regulation aims to facilitate access to data for these entities, while ensuring that the
corresponding obligations are scoped as proportionately as possible to avoid
overreach. At the same time, a small number of very large companies have emerged
with considerable economic power in the digital economy through the accumulation
and aggregation of vast volumes of data and the technological infrastructure for
monetising them. These companies include undertakings that provide core platform
services controlling whole platform ecosystems in the digital economy and whom
existing or new market operators are unable to challenge or contest. The [Regulation
on contestable and fair markets in the digital sector (Digital Markets Act)] aims to
redress these inefficiencies and imbalances by allowing the Commission to designate a
provider as a “gatekeeper”, and imposes a number of obligations on such designated
gatekeepers, including a prohibition to combine certain data without consent, and an
obligation to ensure effective rights to data portability under Article 20 of Regulation
(EU) 2016/679. Consistent with the [Regulation on contestable and fair markets in the
digital sector (Digital Markets Act)], and given the unrivalled ability of these
companies to acquire data, it would not be necessary to achieve the objective of this
Regulation, and would thus be disproportionate in relation to data holders made
subject to such obligations, to include such gatekeeper undertakings as beneficiaries of
the data access right. This means that an undertaking providing core platform services
that has been designated as a gatekeeper cannot request or be granted access to users’
data generated by the use of a product or related service or by a virtual assistant based
on the provisions of Chapter II of this Regulation. An undertaking providing core
platform services designated as a gatekeeper pursuant to Digital Markets Act should
be understood to include all legal entities of a group of companies where one legal
entity provides a core platform service. Furthermore, third parties to whom data are
made available at the request of the user may not make the data available to a
designated gatekeeper. For instance, the third party may not sub-contract the service
provision to a gatekeeper. However, this does not prevent third parties from using data

# EN 27 EN

processing services offered by a designated gatekeeper. This exclusion of designated
gatekeepers from the scope of the access right under this Regulation does not prevent
these companies from obtaining data through other lawful means.

(37) Given the current state of technology, it is overly burdensome to impose further design
obligations in relation to products manufactured or designed and related services
provided by micro and small enterprises. That is not the case, however, where a micro
or small enterprise is sub-contracted to manufacture or design a product. In such
situations, the enterprise, which has sub-contracted to the micro or small enterprise, is
able to compensate the sub-contractor appropriately. A micro or small enterprise may
nevertheless be subject to the requirements laid down by this Regulation as data
holder, where it is not the manufacturer of the product or a provider of related services.

(38) This Regulation contains general access rules, whenever a data holder is obliged by
law to make data available to a data recipient. Such access should be based on fair,
reasonable, non-discriminatory and transparent conditions to ensure consistency of
data sharing practices in the internal market, including across sectors, and to
encourage and promote fair data sharing practices even in areas where no such right to
data access is provided. These general access rules do not apply to obligations to make
data available under Regulation (EU) 2016/679. Voluntary data sharing remains
unaffected by these rules.

(39) Based on the principle of contractual freedom, the parties should remain free to
negotiate the precise conditions for making data available in their contracts, within the
framework of the general access rules for making data available.

(40) In order to ensure that the conditions for mandatory data access are fair for both
parties, the general rules on data access rights should refer to the rule on avoiding
unfair contract terms.

(41) In order to compensate for the lack of information on the conditions of different
contracts, which makes it difficult for the data recipient to assess if the terms for
making the data available are non-discriminatory, it should be on the data holder to
demonstrate that a contractual term is not discriminatory. It is not unlawful
discrimination, where a data holder uses different contractual terms for making data
available or different compensation, if those differences are justified by objective
reasons. These obligations are without prejudice to Regulation (EU) 2016/679.

(42) In order to incentivise the continued investment in generating valuable data, including
investments in relevant technical tools, this Regulation contains the principle that the
data holder may request reasonable compensation when legally obliged to make data
available to the data recipient. These provisions should not be understood as paying
for the data itself, but in the case of micro, small or medium-sized enterprises, for the
costs incurred and investment required for making the data available.

(43) In justified cases, including the need to safeguard consumer participation and
competition or to promote innovation in certain markets, Union law or national
legislation implementing Union law may impose regulated compensation for making
available specific data types.

(44) To protect micro, small or medium-sized enterprises from excessive economic burdens
which would make it commercially too difficult for them to develop and run

# EN 28 EN

innovative business models, the compensation for making data available to be paid by
them should not exceed the direct cost of making the data available and be nondiscriminatory.

(45) Direct costs for making data available are the costs necessary for data reproduction,
dissemination via electronic means and storage but not of data collection or
production. Direct costs for making data available should be limited to the share
attributable to the individual requests, taking into account that the necessary technical
interfaces or related software and connectivity will have to be set up permanently by
the data holder. Long-term arrangements between data holders and data recipients, for
instance via a subscription model, could reduce the costs linked to making the data
available in regular or repetitive transactions in a business relationship.

(46) It is not necessary to intervene in the case of data sharing between large companies, or
when the data holder is a small or medium-sized enterprise and the data recipient is a
large company. In such cases, the companies are considered capable of negotiating any
compensation if it is reasonable, taking into account factors such as the volume,
format, nature, or supply of and demand for the data as well as the costs for collecting
and making the data available to the data recipient.

(47) Transparency is an important principle to ensure that the compensation requested by
the data holder is reasonable, or, in case the data recipient is a micro, small or
medium-sized enterprise, that the compensation does not exceed the costs directly
related to making the data available to the data recipient and is attributable to the
individual request. In order to put the data recipient in the position to assess and verify
that the compensation complies with the requirements under this Regulation, the data
holder should provide to the data recipient the information for the calculation of the
compensation with a sufficient degree of detail.

(48) Ensuring access to alternative ways of resolving domestic and cross-border disputes
that arise in connection with making data available should benefit data holders and
data recipients and therefore strengthen trust in data sharing. In cases where parties
cannot agree on fair, reasonable and non-discriminatory terms of making data
available, dispute settlement bodies should offer a simple, fast and low-cost solution to
the parties.

(49) To avoid that two or more dispute settlement bodies are seized for the same dispute,
particularly in a cross-border setting, a dispute settlement body should be able to reject
a request to resolve a dispute that has already been brought before another dispute
settlement body or before a court or a tribunal of a Member State.

(50) Parties to dispute settlement proceedings should not be prevented from exercising their
fundamental rights to an effective remedy and to a fair trial. Therefore, the decision to
submit a dispute to a dispute settlement body should not deprive those parties of their
right to seek redress before a court or a tribunal of a Member State.

(51) Where one party is in a stronger bargaining position, there is a risk that that party
could leverage such position to the detriment of the other contracting party when
negotiating access to data and make access to data commercially less viable and
sometimes economically prohibitive. Such contractual imbalances particularly harm
micro, small and medium-sized enterprises without a meaningful ability to negotiate

# EN 29 EN

the conditions for access to data, who may have no other choice than to accept ‘take-itor-leave-it’ contractual terms. Therefore, unfair contract terms regulating the access to
and use of data or the liability and remedies for the breach or the termination of data
related obligations should not be binding on micro, small or medium-sized enterprises
when they have been unilaterally imposed on them.

(52) Rules on contractual terms should take into account the principle of contractual
freedom as an essential concept in business-to-business relationships. Therefore, not
all contractual terms should be subject to an unfairness test, but only to those terms
that are unilaterally imposed on micro, small and medium-sized enterprises. This
concerns ‘take-it-or-leave-it’ situations where one party supplies a certain contractual
term and the micro, small or medium-sized enterprise cannot influence the content of
that term despite an attempt to negotiate it. A contractual term that is simply provided
by one party and accepted by the micro, small or medium-sized enterprise or a term
that is negotiated and subsequently agreed in an amended way between contracting
parties should not be considered as unilaterally imposed.

(53) Furthermore, the rules on unfair contractual terms should only apply to those elements
of a contract that are related to making data available, that is contractual terms
concerning the access to and use of data as well as liability or remedies for breach and
termination of data related obligations. Other parts of the same contract, unrelated to
making data available, should not be subject to the unfairness test laid down in this
Regulation.

(54) Criteria to identify unfair contractual terms should be applied only to excessive
contractual terms, where a stronger bargaining position is abused. The vast majority of
contractual terms that are commercially more favourable to one party than to the other,
including those that are normal in business-to-business contracts, are a normal
expression of the principle of contractual freedom and shall continue to apply.

(55) If a contractual term is not included in the list of terms that are always considered
unfair or that are presumed to be unfair, the general unfairness provision applies. In
this regard, the terms listed as unfair terms should serve as a yardstick to interpret the
general unfairness provision. Finally, model contractual terms for business-to-business
data sharing contracts to be developed and recommended by the Commission may also
be helpful to commercial parties when negotiating contracts.

(56) In situations of exceptional need, it may be necessary for public sector bodies or
Union institutions, agencies or bodies to use data held by an enterprise to respond to
public emergencies or in other exceptional cases. Research-performing organisations
and research-funding organisations could also be organised as public sector bodies or
bodies governed by public law. To limit the burden on businesses, micro and small
enterprises should be exempted from the obligation to provide public sector bodies and
Union institutions, agencies or bodies data in situations of exceptional need.

(57) In case of public emergencies, such as public health emergencies, emergencies
resulting from environmental degradation and major natural disasters including those
aggravated by climate change, as well as human-induced major disasters, such as
major cybersecurity incidents, the public interest resulting from the use of the data will
outweigh the interests of the data holders to dispose freely of the data they hold. In
such a case, data holders should be placed under an obligation to make the data

# EN 30 EN

available to public sector bodies or to Union institutions, agencies or bodies upon their
request. The existence of a public emergency is determined according to the respective
procedures in the Member States or of relevant international organisations.

(58) An exceptional need may also arise when a public sector body can demonstrate that
the data are necessary either to prevent a public emergency, or to assist recovery from
a public emergency, in circumstances that are reasonably proximate to the public
emergency in question. Where the exceptional need is not justified by the need to
respond to, prevent or assist recovery from a public emergency, the public sector body
or the Union institution, agency or body should demonstrate that the lack of timely
access to and the use of the data requested prevents it from effectively fulfilling a
specific task in the public interest that has been explicitly provided in law. Such
exceptional need may also occur in other situations, for example in relation to the
timely compilation of official statistics when data is not otherwise available or when
the burden on statistical respondents will be considerably reduced. At the same time,
the public sector body or the Union institution, agency or body should, outside the
case of responding to, preventing or assisting recovery from a public emergency,
demonstrate that no alternative means for obtaining the data requested exists and that
the data cannot be obtained in a timely manner through the laying down of the
necessary data provision obligations in new legislation.

(59) This Regulation should not apply to, nor pre-empt, voluntary arrangements for the
exchange of data between private and public entities. Obligations placed on data
holders to provide data that are motivated by needs of a non-exceptional nature,
notably where the range of data and of data holders is known and where data use can
take place on a regular basis, as in the case of reporting obligations and internal market
obligations, should not be affected by this Regulation. Requirements to access data to
verify compliance with applicable rules, including in cases where public sector bodies
assign the task of the verification of compliance to entities other than public sector
bodies, should also not be affected by this Regulation.

(60) For the exercise of their tasks in the areas of prevention, investigation, detection or
prosecution of criminal and administrative offences, the execution of criminal and
administrative penalties, as well as the collection of data for taxation or customs
purposes, public sector bodies and Union institutions, agencies and bodies should rely
on their powers under sectoral legislation. This Regulation accordingly does not affect
instruments for the sharing, access and use of data in those areas.

(61) A proportionate, limited and predictable framework at Union level is necessary for the
making available of data by data holders, in cases of exceptional needs, to public
sector bodies and to Union institution, agencies or bodies both to ensure legal certainty
and to minimise the administrative burdens placed on businesses. To this end, data
requests by public sector bodies and by Union institution, agencies and bodies to data
holders should be transparent and proportionate in terms of their scope of content and
their granularity. The purpose of the request and the intended use of the data requested
should be specific and clearly explained, while allowing appropriate flexibility for the
requesting entity to perform its tasks in the public interest. The request should also
respect the legitimate interests of the businesses to whom the request is made. The
burden on data holders should be minimised by obliging requesting entities to respect
the once-only principle, which prevents the same data from being requested more than
once by more than one public sector body or Union institution, agency or body where

# EN 31 EN

those data are needed to respond to a public emergency. To ensure transparency, data
requests made by public sector bodies and by Union institutions, agencies or bodies
should be made public without undue delay by the entity requesting the data and
online public availability of all requests justified by a public emergency should be
ensured.

(62) The objective of the obligation to provide the data is to ensure that public sector
bodies and Union institutions, agencies or bodies have the necessary knowledge to
respond to, prevent or recover from public emergencies or to maintain the capacity to
fulfil specific tasks explicitly provided by law. The data obtained by those entities may
be commercially sensitive. Therefore, Directive (EU) 2019/1024 of the European
Parliament and of the Council [65] should not apply to data made available under this
Regulation and should not be considered as open data available for reuse by third
parties. This however should not affect the applicability of Directive (EU) 2019/1024
to the reuse of official statistics for the production of which data obtained pursuant to
this Regulation was used, provided the reuse does not include the underlying data. In
addition, it should not affect the possibility of sharing the data for conducting research
or for the compilation of official statistics, provided the conditions laid down in this
Regulation are met. Public sector bodies should also be allowed to exchange data
obtained pursuant to this Regulation with other public sector bodies to address the
exceptional needs for which the data has been requested.

(63) Data holders should have the possibility to either ask for a modification of the request
made by a public sector body or Union institution, agency and body or its cancellation
in a period of 5 or 15 working days depending on the nature of the exceptional need
invoked in the request. In case of requests motivated by a public emergency, justified
reason not to make the data available should exist if it can be shown that the request is
similar or identical to a previously submitted request for the same purpose by another
public sector body or by another Union institution, agency or body. A data holder
rejecting the request or seeking its modification should communicate the underlying
justification for refusing the request to the public sector body or to the Union
institution, agency or body requesting the data. In case the _sui generis_ database rights
under Directive 96/6/EC of the European Parliament and of the Council [66] apply in
relation to the requested datasets, data holders should exercise their rights in a way
that does not prevent the public sector body and Union institutions, agencies or bodies
from obtaining the data, or from sharing it, in accordance with this Regulation.

(64) Where it is strictly necessary to include personal data in the data made available to a
public sector body or to a Union institution, agency or body the applicable rules on
personal data protection should be complied with and the making available of the data
and their subsequent use should and be accompanied by safeguards for the rights and
interests of individuals concerned by those data. The body requesting the data should
demonstrate the strict necessity and the specific and limited purposes for processing.
The data holder should take reasonable efforts to anonymise the data or, where such
anonymisation proves impossible, the data holder should apply technological means
such as pseudonymisation and aggregation, prior to making the data available.

65 Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data
and the re-use of public sector information (OJ L 172, 26.6.2019, p. 56).
66 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal
protection of databases (OJ L 77, 27.3.1996, p. 20).

# EN 32 EN

(65) Data made available to public sector bodies and to Union institutions, agencies and
bodies on the basis of exceptional need should only be used for the purpose for which
they were requested, unless the data holder that made the data available has expressly
agreed for the data to be used for other purposes. The data should be destroyed once it
is no longer necessary for the purpose stated in the request, unless agreed otherwise,
and the data holder should be informed thereof.

(66) When reusing data provided by data holders, public sector bodies and Union
institutions, agencies or bodies should respect both existing applicable legislation and
contractual obligations to which the data holder is subject. Where the disclosure of
trade secrets of the data holder to public sector bodies or to Union institutions,
agencies or bodies is strictly necessary to fulfil the purpose for which the data has
been requested, confidentiality of such disclosure should be ensured to the data holder.

(67) When the safeguarding of a significant public good is at stake, such as is the case of
responding to public emergencies, the public sector body or the Union institution,
agency or body should not be expected to compensate enterprises for the data
obtained. Public emergencies are rare events and not all such emergencies require the
use of data held by enterprises. The business activities of the data holders are therefore
not likely to be negatively affected as a consequence of the public sector bodies or
Union institutions, agencies or bodies having recourse to this Regulation. However, as
cases of an exceptional need other than responding to a public emergency might be
more frequent, including cases of prevention of or recovery from a public emergency,
data holders should in such cases be entitled to a reasonable compensation which
should not exceed the technical and organisational costs incurred in complying with
the request and the reasonable margin required for making the data available to the
public sector body or to the Union institution, agency or body. The compensation
should not be understood as constituting payment for the data itself and as being
compulsory.

(68) The public sector body or Union institution, agency or body may share the data it has
obtained pursuant to the request with other entities or persons when this is needed to
carry out scientific research activities or analytical activities it cannot perform itself.
Such data may also be shared under the same circumstances with the national
statistical institutes and Eurostat for the compilation of official statistics. Such research
activities should however be compatible with the purpose for which the data was
requested and the data holder should be informed about the further sharing of the data
it had provided. Individuals conducting research or research organisations with whom
these data may be shared should act either on a not-for-profit basis or in the context of
a public-interest mission recognised by the State. Organisations upon which
commercial undertakings have a decisive influence allowing such undertakings to
exercise control because of structural situations, which could result in preferential
access to the results of the research, should not be considered research organisations
for the purposes of this Regulation.

(69) The ability for customers of data processing services, including cloud and edge
services, to switch from one data processing service to another, while maintaining a
minimum functionality of service, is a key condition for a more competitive market
with lower entry barriers for new service providers.

# EN 33 EN

(70) Regulation (EU) 2018/1807 of the European Parliament and of the Council encourages
service providers to effectively develop and implement self-regulatory codes of
conduct covering best practices for, _inter alia_, facilitating the switching of data
processing service providers and the porting of data. Given the limited efficacy of the
self-regulatory frameworks developed in response, and the general unavailability of
open standards and interfaces, it is necessary to adopt a set of minimum regulatory
obligations on providers of data processing services to eliminate contractual, economic
and technical barriers to effective switching between data processing services.

(71) Data processing services should cover services that allow on-demand and broad
remote access to a scalable and elastic pool of shareable and distributed computing
resources. Those computing resources include resources such as networks, servers or
other virtual or physical infrastructure, operating systems, software, including software
development tools, storage, applications and services. The capability of the customer
of the data processing service to unilaterally self-provision computing capabilities,
such as server time or network storage, without any human interaction by the service
provider could be described as on-demand administration. The term ‘broad remote
access’ is used to describe that the computing capabilities are provided over the
network and accessed through mechanisms promoting the use of heterogeneous thin or
thick client platforms (from web browsers to mobile devices and workstations). The
term ‘scalable’ refers to computing resources that are flexibly allocated by the data
processing service provider, irrespective of the geographical location of the resources,
in order to handle fluctuations in demand. The term ‘elastic pool’ is used to describe
those computing resources that are provisioned and released according to demand in
order to rapidly increase or decrease resources available depending on workload. The
term ‘shareable’ is used to describe those computing resources that are provided to
multiple users who share a common access to the service, but where the processing is
carried out separately for each user, although the service is provided from the same
electronic equipment. The term ‘distributed’ is used to describe those computing
resources that are located on different networked computers or devices and which
communicate and coordinate among themselves by message passing. The term ‘highly
distributed’ is used to describe data processing services that involve data processing
closer to where data are being generated or collected, for instance in a connected data
processing device. Edge computing, which is a form of such highly distributed data
processing, is expected to generate new business models and cloud service delivery
models, which should be open and interoperable from the outset.

(72) This Regulation aims to facilitate switching between data processing services, which
encompasses all conditions and actions that are necessary for a customer to terminate a
contractual agreement of a data processing service, to conclude one or multiple new
contracts with different providers of data processing services, to port all its digital
assets, including data, to the concerned other providers and to continue to use them in
the new environment while benefitting from functional equivalence. Digital assets
refer to elements in digital format for which the customer has the right of use,
including data, applications, virtual machines and other manifestations of
virtualisation technologies, such as containers. Functional equivalence means the
maintenance of a minimum level of functionality of a service after switching, and
should be deemed technically feasible whenever both the originating and the
destination data processing services cover (in part or in whole) the same service type.
Meta-data, generated by the customer’s use of a service, should also be portable
pursuant to this Regulation’s provisions on switching.

# EN 34 EN

(73) Where providers of data processing services are in turn customers of data processing
services provided by a third party provider, they will benefit from more effective
switching themselves, while simultaneously invariably bound by this Regulation’s
obligations for what pertains to their own service offerings.

(74) Data processing service providers should be required to offer all assistance and
support that is required to make the switching process successful and effective without
requiring those data processing service providers to develop new categories of services
within or on the basis of the IT-infrastructure of different data processing service
providers to guarantee functional equivalence in an environment other than their own
systems. Nevertheless, service providers are required to offer all assistance and
support that is required to make the switching process effective. Existing rights
relating to the termination of contracts, including those introduced by Regulation (EU)
2016/679 and Directive (EU) 2019/770 of the European Parliament and of the
Council [67 ] should not be affected.

(75) To facilitate switching between data processing services, providers of data processing
services should consider the use of implementation and/or compliance tools, notably
those published by the Commission in the form of a Rulebook relating to cloud
services. In particular, standard contractual clauses are beneficial to increase
confidence in data processing services, to create a more balanced relationship between
users and service providers and to improve legal certainty on the conditions that apply
for switching to other data processing services. In this light, users and service
providers should consider the use of standard contractual clauses developed by
relevant bodies or expert groups established under Union law.

(76) Open interoperability specifications and standards developed in accordance with
paragraph 3 and 4 of Annex II of Regulation (EU) 1025/2021 in the field of
interoperability and portability enable a seamless multi-vendor cloud environment,
which is a key requirement for open innovation in the European data economy. As
market-driven processes have not demonstrated the capacity to establish technical
specifications or standards that facilitate effective cloud interoperability at the PaaS
(platform-as-a-service) and SaaS (software-as-a-service) levels, the Commission
should be able, on the basis of this Regulation and in accordance with Regulation (EU)
No 1025/2012, to request European standardisation bodies to develop such standards,
particularly for service types where such standards do not yet exist. In addition to this,
the Commission will encourage parties in the market to develop relevant open
interoperability specifications. The Commission, by way of delegated acts, can
mandate the use of European standards for interoperability or open interoperability
specifications for specific service types through a reference in a central Union
standards repository for the interoperability of data processing services. European
standards and open interoperability specifications will only be referenced if in
compliance with the criteria specified in this Regulation, which have the same
meaning as the requirements in paragraphs 3 and 4 of Annex II of Regulation (EU) No
1025/2021 and the interoperability facets defined under the ISO/IEC 19941:2017.

(77) Third countries may adopt laws, regulations and other legal acts that aim at directly
transferring or providing governmental access to non-personal data located outside

67 Directive (EU) 2019/770 of the European Parliament and of the Council of 20 May 2019 on certain
aspects concerning contracts for the supply of digital content and digital services (OJ L 136, 22.5.2019, p. 1).

# EN 35 EN

their borders, including in the Union. Judgments of courts or tribunals or decisions of
other judicial or administrative authorities, including law enforcement authorities in
third countries requiring such transfer or access to non-personal data should be
enforceable when based on an international agreement, such as a mutual legal
assistance treaty, in force between the requesting third country and the Union or a
Member State. In other cases, situations may arise where a request to transfer or
provide access to non-personal data arising from a third country law conflicts with an
obligation to protect such data under Union law or national law, in particular as
regards the protection of fundamental rights of the individual, such as the right to
security and the right to effective remedy, or the fundamental interests of a Member
State related to national security or defence, as well as the protection of commercially
sensitive data, including the protection of trade secrets, and the protection of
intellectual property rights, and including its contractual undertakings regarding
confidentiality in accordance with such law. In the absence of international agreements
regulating such matters, transfer or access should only be allowed if it has been
verified that the third country’s legal system requires the reasons and proportionality
of the decision to be set out, that the court order or the decision is specific in character,
and that the reasoned objection of the addressee is subject to a review by a competent
court in the third country, which is empowered to take duly into account the relevant
legal interests of the provider of such data. Wherever possible under the terms of the
data access request of the third country’s authority, the provider of data processing
services should be able to inform the customer whose data are being requested in order
to verify the presence of a potential conflict of such access with Union or national
rules, such as those on the protection of commercially sensitive data, including the
protection of trade secrets and intellectual property rights and the contractual
undertakings regarding confidentiality.

(78) To foster further trust in the data, it is important that safeguards in relation to Union
citizens, the public sector and businesses are implemented to the extent possible to
ensure control over their data. In addition, Union law, values and standards should be
upheld in terms of (but not limited to) security, data protection and privacy, and
consumer protection. In order to prevent unlawful access to non-personal data,
providers of data processing services subject to this instrument, such as cloud and edge
services, should take all reasonable measures to prevent access to the systems where
non-personal data is stored, including, where relevant, through the encryption of data,
the frequent submission to audits, the verified adherence to relevant security
reassurance certification schemes, and the modification of corporate policies.

(79) Standardisation and semantic interoperability should play a key role to provide
technical solutions to ensure interoperability. In order to facilitate the conformity with
the requirements for interoperability, it is necessary to provide for a presumption of
conformity for interoperability solutions that meet harmonised standards or parts
thereof in accordance with Regulation (EU) No 1025/2012 of the European Parliament
and of the Council. The Commission should adopt common specifications in areas
where no harmonised standards exist or where they are insufficient in order to further
enhance interoperability for the common European data spaces, application
programming interfaces, cloud switching as well as smart contracts. Additionally,
common specifications in the different sectors could remain to be adopted, in
accordance with Union or national sectoral law, based on the specific needs of those
sectors. Reusable data structures and models (in form of core vocabularies),
ontologies, metadata application profile, reference data in the form of core vocabulary,

# EN 36 EN

taxonomies, code lists, authority tables, thesauri should also be part of the technical
specifications for semantic interoperability. Furthermore, the Commission should be
enabled to mandate the development of harmonised standards for the interoperability
of data processing services.

(80) To promote the interoperability of smart contracts in data sharing applications, it is
necessary to lay down essential requirements for smart contracts for professionals who
create smart contracts for others or integrate such smart contracts in applications that
support the implementation of agreements for sharing data. In order to facilitate the
conformity of such smart contracts with those essential requirements, it is necessary to
provide for a presumption of conformity for smart contracts that meet harmonised
standards or parts thereof in accordance with Regulation (EU) No 1025/2012 of the
European Parliament and of the Council.

(81) In order to ensure the efficient implementation of this Regulation, Member States
should designate one or more competent authorities. If a Member State designates
more than one competent authority, it should also designate a coordinating competent
authority. Competent authorities should cooperate with each other. The authorities
responsible for the supervision of compliance with data protection and competent
authorities designated under sectoral legislation should have the responsibility for
application of this Regulation in their areas of competence.

(82) In order to enforce their rights under this Regulation, natural and legal persons should
be entitled to seek redress for the infringements of their rights under this Regulation by
lodging complaints with competent authorities. Those authorities should be obliged to
cooperate to ensure the complaint is appropriately handled and resolved. In order to
make use of the consumer protection cooperation network mechanism and to enable
representative actions, this Regulation amends the Annexes to the Regulation (EU)
2017/2394 of the European Parliament and of the Council [68] and Directive (EU)
2020/1828 of the European Parliament and of the Council [69] .

(83) Member States competent authorities should ensure that infringements of the
obligations laid down in this Regulation are sanctioned by penalties. When doing so,
they should take into account the nature, gravity, recurrence and duration of the
infringement in view of the public interest at stake, the scope and kind of activities
carried out, as well as the economic capacity of the infringer. They should take into
account whether the infringer systematically or recurrently fails to comply with its
obligations stemming from this Regulation. In order to help enterprises to draft and
negotiate contracts, the Commission should develop and recommend non-mandatory
model contractual terms for business-to-business data sharing contracts, where
necessary taking into account the conditions in specific sectors and the existing
practices with voluntary data sharing mechanisms. These model contractual terms
should be primarily a practical tool to help in particular smaller enterprises to conclude
a contract. When used widely and integrally, these model contractual terms should

68 Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on
cooperation between national authorities responsible for the enforcement of consumer protection laws
and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1).

69 Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on
representative actions for the protection of the collective interests of consumers and repealing Directive
2009/22/EC (OJ L 409, 4.12.2020, p. 1).

# EN 37 EN

also have the beneficial effect of influencing the design of contracts about access to
and use of data and therefore lead more broadly towards fairer contractual relations
when accessing and sharing data.

(84) In order to eliminate the risk that holders of data in databases obtained or generated by
means of physical components, such as sensors, of a connected product and a related
service claim the _sui generis_ right under Article 7 of Directive 96/9/EC where such
databases do not qualify for the _sui generis_ right, and in so doing hinder the effective
exercise of the right of users to access and use data and the right to share data with
third parties under this Regulation, this Regulation should clarify that the _sui generis_
right does not apply to such databases as the requirements for protection would not be
fulfilled.

(85) In order to take account of technical aspects of data processing services, the power to
adopt acts in accordance with Article 290 TFEU should be delegated to the
Commission in respect of supplementing this Regulation to introduce a monitoring
mechanism on switching charges imposed by data processing service providers on the
market, to further specify the essential requirements for operators of data spaces and
data processing service providers on interoperability and to publish the reference of
open interoperability specifications and European standards for the interoperability of
data processing services. It is of particular importance that the Commission carry out
appropriate consultations during its preparatory work, including at expert level, and
that those consultations be conducted in accordance with the principles laid down in
the Interinstitutional Agreement on Better Law-Making of 13 April 2016 [70] . In
particular, to ensure equal participation in the preparation of delegated acts, the
European Parliament and the Council receive all documents at the same time as
Member States’ experts, and their experts systematically have access to meetings of
Commission expert groups dealing with the preparation of delegated acts.

(86) In order to ensure uniform conditions for the implementation of this Regulation,
implementing powers should be conferred on the Commission in respect of
supplementing this Regulation to adopt common specifications to ensure the
interoperability of common European data spaces and data sharing, the switching
between data processing services, the interoperability of smart contracts as well as for
technical means, such as application programming interfaces, for enabling
transmission of data between parties including continuous or real-time and for core
vocabularies of semantic interoperability, and to adopt common specifications for
smart contracts. Those powers should be exercised in accordance with Regulation
(EU) No 182/2011 of the European Parliament and of the Council [71] .

(87) This Regulation should not affect specific provisions of acts of the Union adopted in
the field of data sharing between businesses, between businesses and consumers and
between businesses and public sector bodies that were adopted prior to the date of the
adoption of this Regulation. To ensure consistency and the smooth functioning of the
internal market, the Commission should, where relevant, evaluate the situation with
regard to the relationship between this Regulation and the acts adopted prior to the
date of adoption of this Regulation regulating data sharing, in order to assess the need

70
[OJ L 123, 12.5.2016, p. 1.](https://eur-lex.europa.eu/legal-content/EN/AUTO/?uri=OJ:L:2016:123:TOC)
71 Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011
laying down the rules and general principles concerning mechanisms for control by the Member States
of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p.13).

# EN 38 EN

for alignment of those specific provisions with this Regulation. This Regulation should
be without prejudice to rules addressing needs specific to individual sectors or areas of
public interest. Such rules may include additional requirements on technical aspects of
the data access, such as interfaces for data access, or how data access could be
provided, for example directly from the product or via data intermediation services.
Such rules may also include limits on the rights of data holders to access or use user
data, or other aspects beyond data access and use, such as governance aspects. This
Regulation also should be without prejudice to more specific rules in the context of the
development of common European data spaces.

(88) This Regulation should not affect the application of the rules of competition, and in
particular Articles 101 and 102 of the Treaty. The measures provided for in this
Regulation should not be used to restrict competition in a manner contrary to the
Treaty.

(89) In order to allow the economic actors to adapt to the new rules laid out in this
Regulation, they should apply from a year after entry into force of the Regulation.

(90) The European Data Protection Supervisor and the European Data Protection Board
were consulted in accordance with Article 42 of Regulation (EU) 2018/1725 and
delivered a joint opinion on [XX XX 2022].

HAVE ADOPTED THIS REGULATION:

### **CHAPTER I** **GENERAL PROVISIONS**

_Article 1_
_Subject matter and scope_

1. This Regulation lays down harmonised rules on making data generated by the use of
a product or related service available to the user of that product or service, on the
making data available by data holders to data recipients, and on the making data
available by data holders to public sector bodies or Union institutions, agencies or
bodies, where there is an exceptional need, for the performance of a task carried out
in the public interest:

2. This Regulation applies to:

(a) manufacturers of products and suppliers of related services placed on the
market in the Union and the users of such products or services;

(b) data holders that make data available to data recipients in the Union;

(c) data recipients in the Union to whom data are made available;

(d) public sector bodies and Union institutions, agencies or bodies that request data
holders to make data available where there is an exceptional need to that data

# EN 39 EN

for the performance of a task carried out in the public interest and the data
holders that provide those data in response to such request;

(e) providers of data processing services offering such services to customers in the
Union.

3. Union law on the protection of personal data, privacy and confidentiality of
communications and integrity of terminal equipment shall apply to personal data
processed in connection with the rights and obligations laid down in this Regulation.
This Regulation shall not affect the applicability of Union law on the protection of
personal data, in particular Regulation (EU) 2016/679 and Directive 2002/58/EC,
including the powers and competences of supervisory authorities. Insofar as the
rights laid down in Chapter II of this Regulation are concerned, and where users are
the data subjects of personal data subject to the rights and obligations under that
Chapter, the provisions of this Regulation shall complement the right of data
portability under Article 20 of Regulation (EU) 2016/679.

4. This Regulation shall not affect Union and national legal acts providing for the
sharing, access and use of data for the purpose of the prevention, investigation,
detection or prosecution of criminal offences or the execution of criminal penalties,
including Regulation (EU) 2021/784 of the European Parliament and of the Council [72]
and the [e-evidence proposals [COM(2018) 225 and 226] once adopted, and
international cooperation in that area. This Regulation shall not affect the collection,
sharing, access to and use of data under Directive (EU) 2015/849 of the European
Parliament and of the Council on the prevention of the use of the financial system for
the purposes of money laundering and terrorist financing and Regulation (EU)
2015/847 of the European Parliament and of the Council on information
accompanying the transfer of funds. This Regulation shall not affect the competences
of the Member States regarding activities concerning public security, defence,
national security, customs and tax administration and the health and safety of citizens
in accordance with Union law.

_Article 2_
_Definitions_

For the purposes of this Regulation, the following definitions apply:

(1) ‘data’ means any digital representation of acts, facts or information and any
compilation of such acts, facts or information, including in the form of sound, visual
or audio-visual recording;

(2) ‘product’ means a tangible, movable item, including where incorporated in an
immovable item, that obtains, generates or collects, data concerning its use or
environment, and that is able to communicate data via a publicly available electronic
communications service and whose primary function is not the storing and
processing of data;

72 Regulation (EU) 2021/784 of the European Parliament and of the Council of 29 April 2021 on
addressing the dissemination of terrorist content online (OJ L 172, 17.5.2021, p. 79).

# EN 40 EN

(3) ‘related service’ means a digital service, including software, which is incorporated in
or inter-connected with a product in such a way that its absence would prevent the
product from performing one of its functions;

(4) ‘virtual assistants’ means software that can process demands, tasks or questions
including based on audio, written input, gestures or motions, and based on those
demands, tasks or questions provides access their own and third party services or
control their own and third party devices;

(5) ‘user’ means a natural or legal person that owns, rents or leases a product or receives
a services;

(6) ‘data holder’ means a legal or natural person who has the right or obligation, in
accordance with this Regulation, applicable Union law or national legislation
implementing Union law, or in the case of non-personal data and through control of
the technical design of the product and related services, the ability, to make available
certain data;

(7) ‘data recipient’ means a legal or natural person, acting for purposes which are related
to that person’s trade, business, craft or profession, other than the user of a product or
related service, to whom the data holder makes data available, including a third party
following a request by the user to the data holder or in accordance with a legal
obligation under Union law or national legislation implementing Union law;

(8) ‘enterprise’ means a natural or legal person which in relation to contracts and
practices covered by this Regulation is acting for purposes which are related to that
person’s trade, business, craft or profession;

(9) ‘public sector body’ means national, regional or local authorities of the Member
States and bodies governed by public law of the Member States, or associations
formed by one or more such authorities or one or more such bodies;

(10) ‘public emergency’ means an exceptional situation negatively affecting the
population of the Union, a Member State or part of it, with a risk of serious and
lasting repercussions on living conditions or economic stability, or the substantial
degradation of economic assets in the Union or the relevant Member State(s);

(11) ‘processing’ means any operation or set of operations which is performed on data or
on sets of data in electronic format, whether or not by automated means, such as
collection, recording, organisation, structuring, storage, adaptation or alteration,
retrieval, consultation, use, disclosure by transmission, dissemination or otherwise
making available, alignment or combination, restriction, erasure or destruction;

(12) ‘data processing service’ means a digital service other than an online content service
as defined in Article 2(5) of Regulation (EU) 2017/1128, provided to a customer,
which enables on-demand administration and broad remote access to a scalable and
elastic pool of shareable computing resources of a centralised, distributed or highly
distributed nature;

(13) ‘service type’ means a set of data processing services that share the same primary
objective and basic data processing service model;

# EN 41 EN

(14) ‘functional equivalence’ means the maintenance of a minimum level of functionality
in the environment of a new data processing service after the switching process, to
such an extent that, in response to an input action by the user on core elements of the
service, the destination service will deliver the same output at the same performance
and with the same level of security, operational resilience and quality of service as
the originating service at the time of termination of the contract;

(15) ‘open interoperability specifications’ mean ICT technical specifications, as defined
in Regulation (EU) No 1025/2012, which are performance oriented towards
achieving interoperability between data processing services;

(16) ‘smart contract’ means a computer program stored in an electronic ledger system
wherein the outcome of the execution of the program is recorded on the electronic
ledger;

(17) ‘electronic ledger’ means an electronic ledger within the meaning of Article 3, point
(53), of Regulation (EU) No 910/2014;

(18) ‘common specifications’ means a document, other than a standard, containing
technical solutions providing a means to comply with certain requirements and
obligations established under this Regulation;

(19) ‘interoperability’ means the ability of two or more data spaces or communication
networks, systems, products, applications or components to exchange and use data in
order to perform their functions;

(20) ‘harmonised standard’ means a harmonised standard as defined in Article 2, point
(1)(c), of Regulation (EU) No 1025/2012.

### **CHAPTER II** **BUSINESS TO CONSUMER AND BUSINESS TO BUSINESS** **DATA SHARING**

_Article 3_
_Obligation to make data generated by the use of products or related services accessible_

1. Products shall be designed and manufactured, and related services shall be provided,
in such a manner that data generated by their use are, by default, easily, securely and,
where relevant and appropriate, directly accessible to the user.

2. Before concluding a contract for the purchase, rent or lease of a product or a related
service, at least the following information shall be provided to the user, in a clear and
comprehensible format:

(a) the nature and volume of the data likely to be generated by the use of the
product or related service;

(b) whether the data is likely to be generated continuously and in real-time;

# EN 42 EN

(c) how the user may access those data;

(d) whether the manufacturer supplying the product or the service provider
providing the related service intends to use the data itself or allow a third party
to use the data and, if so, the purposes for which those data will be used;

(e) whether the seller, renter or lessor is the data holder and, if not, the identity of
the data holder, such as its trading name and the geographical address at which
it is established;

(f) the means of communication which enable the user to contact the data holder
quickly and communicate with that data holder efficiently;

(g) how the user may request that the data are shared with a third-party;

(h) the user’s right to lodge a complaint alleging a violation of the provisions of
this Chapter with the competent authority referred to in Article 31.

_Article 4_
_The right of users to access and use data generated by the use of products or related services_

1. Where data cannot be directly accessed by the user from the product, the data holder
shall make available to the user the data generated by its use of a product or related
service without undue delay, free of charge and, where applicable, continuously and
in real-time. This shall be done on the basis of a simple request through electronic
means where technically feasible.

2. The data holder shall not require the user to provide any information beyond what is
necessary to verify the quality as a user pursuant to paragraph 1. The data holder
shall not keep any information on the user’s access to the data requested beyond
what is necessary for the sound execution of the user’s access request and for the
security and the maintenance of the data infrastructure.

3. Trade secrets shall only be disclosed provided that all specific necessary measures
are taken to preserve the confidentiality of trade secrets in particular with respect to
third parties. The data holder and the user can agree measures to preserve the
confidentiality of the shared data, in particular in relation to third parties.

4. The user shall not use the data obtained pursuant to a request referred to in paragraph
1 to develop a product that competes with the product from which the data originate.

5. Where the user is not a data subject, any personal data generated by the use of a
product or related service shall only be made available by the data holder to the user
where there is a valid legal basis under Article 6(1) of Regulation (EU) 2016/679
and, where relevant, the conditions of Article 9 of Regulation (EU) 2016/679 are
fulfilled.

6. The data holder shall only use any non-personal data generated by the use of a
product or related service on the basis of a contractual agreement with the user. The
data holder shall not use such data generated by the use of the product or related
service to derive insights about the economic situation, assets and production

# EN 43 EN

methods of or the use by the user that could undermine the commercial position of
the user in the markets in which the user is active.

_Article 5_
_Right to share data with third parties_

1. Upon request by a user, or by a party acting on behalf of a user, the data holder shall
make available the data generated by the use of a product or related service to a third
party, without undue delay, free of charge to the user, of the same quality as is
available to the data holder and, where applicable, continuously and in real-time.

2. Any undertaking providing core platform services for which one or more of such
services have been designated as a gatekeeper, pursuant to Article […] of

[Regulation XXX on contestable and fair markets in the digital sector (Digital
Markets Act) [73] ], shall not be an eligible third party under this Article and therefore
shall not:

(a) solicit or commercially incentivise a user in any manner, including by
providing monetary or any other compensation, to make data available to one
of its services that the user has obtained pursuant to a request under Article
4(1);

(b) solicit or commercially incentivise a user to request the data holder to make
data available to one of its services pursuant to paragraph 1 of this Article;

(c) receive data from a user that the user has obtained pursuant to a request under
Article 4(1).

3. The user or third party shall not be required to provide any information beyond what
is necessary to verify the quality as user or as third party pursuant to paragraph 1.
The data holder shall not keep any information on the third party’s access to the data
requested beyond what is necessary for the sound execution of the third party’s
access request and for the security and the maintenance of the data infrastructure.

4. The third party shall not deploy coercive means or abuse evident gaps in the
technical infrastructure of the data holder designed to protect the data in order to
obtain access to data.

5. The data holder shall not use any non-personal data generated by the use of the
product or related service to derive insights about the economic situation, assets and
production methods of or use by the third party that could undermine the commercial
position of the third party on the markets in which the third party is active, unless the
third party has consented to such use and has the technical possibility to withdraw
that consent at any time.

6. Where the user is not a data subject, any personal data generated by the use of a
product or related service shall only be made available where there is a valid legal
basis under Article 6(1) of Regulation (EU) 2016/679 and where relevant, the
conditions of Article 9 of Regulation (EU) 2016/679 are fulfilled.

73 OJ […].

# EN 44 EN

7. Any failure on the part of the data holder and the third party to agree on
arrangements for transmitting the data shall not hinder, prevent or interfere with the
exercise of the rights of the data subject under Regulation (EU) 2016/679 and, in
particular, with the right to data portability under Article 20 of that Regulation.

8. Trade secrets shall only be disclosed to third parties to the extent that they are strictly
necessary to fulfil the purpose agreed between the user and the third party and all
specific necessary measures agreed between the data holder and the third party are
taken by the third party to preserve the confidentiality of the trade secret. In such a
case, the nature of the data as trade secrets and the measures for preserving the
confidentiality shall be specified in the agreement between the data holder and the
third party.

9. The right referred to in paragraph 1 shall not adversely affect data protection rights
of others.

_Article 6_
_Obligations of third parties receiving data at the request of the user_

1. A third party shall process the data made available to it pursuant to Article 5 only for
the purposes and under the conditions agreed with the user, and subject to the rights
of the data subject insofar as personal data are concerned, and shall delete the data
when they are no longer necessary for the agreed purpose.

2. The third party shall not:

(a) coerce, deceive or manipulate the user in any way, by subverting or impairing
the autonomy, decision-making or choices of the user, including by means of a
digital interface with the user;

(b) use the data it receives for the profiling of natural persons within the meaning
of Article 4(4) of Regulation (EU) 2016/679, unless it is necessary to provide
the service requested by the user;

(c) make the data available it receives to another third party, in raw, aggregated or
derived form, unless this is necessary to provide the service requested by the

user;

(d) make the data available it receives to an undertaking providing core platform
services for which one or more of such services have been designated as a
gatekeeper pursuant to Article […] of [Regulation on contestable and fair
markets in the digital sector (Digital Markets Act)];

(e) use the data it receives to develop a product that competes with the product
from which the accessed data originate or share the data with another third
party for that purpose;

(f) prevent the user, including through contractual commitments, from making the
data it receives available to other parties.

# EN 45 EN

_Article 7_
_Scope of business to consumer and business to business data sharing obligations_

1. The obligations of this Chapter shall not apply to data generated by the use of
products manufactured or related services provided by enterprises that qualify as
micro or small enterprises, as defined in Article 2 of the Annex to Recommendation
2003/361/EC, provided those enterprises do not have partner enterprises or linked
enterprises as defined in Article 3 of the Annex to Recommendation 2003/361/EC
which do not qualify as a micro or small enterprise.

2. Where this Regulation refers to products or related services, such reference shall also
be understood to include virtual assistants, insofar as they are used to access or
control a product or related service.

### **CHAPTER III** **OBLIGATIONS FOR DATA HOLDERS LEGALLY OBLIGED** **TO MAKE DATA AVAILABLE**

_Article 8_
_Conditions under which data holders make data available to data recipients_

1. Where a data holder is obliged to make data available to a data recipient under
Article 5 or under other Union law or national legislation implementing Union law, it
shall do so under fair, reasonable and non-discriminatory terms and in a transparent
manner in accordance with the provisions of this Chapter and Chapter IV.

2. A data holder shall agree with a data recipient the terms for making the data
available. A contractual term concerning the access to and use of the data or the
liability and remedies for the breach or the termination of data related obligations
shall not be binding if it fulfils the conditions of Article 13 or if it excludes the
application of, derogates from or varies the effect of the user’s rights under Chapter
II.

3. A data holder shall not discriminate between comparable categories of data
recipients, including partner enterprises or linked enterprises, as defined in Article 3
of the Annex to Recommendation 2003/361/EC, of the data holder, when making
data available. Where a data recipient considers the conditions under which data has
been made available to it to be discriminatory, it shall be for the data holder to
demonstrate that there has been no discrimination.

4. A data holder shall not make data available to a data recipient on an exclusive basis
unless requested by the user under Chapter II.

5. Data holders and data recipients shall not be required to provide any information
beyond what is necessary to verify compliance with the contractual terms agreed for
making data available or their obligations under this Regulation or other applicable
Union law or national legislation implementing Union law.

# EN 46 EN

6. Unless otherwise provided by Union law, including Article 6 of this Regulation, or
by national legislation implementing Union law, an obligation to make data available
to a data recipient shall not oblige the disclosure of trade secrets within the meaning
of Directive (EU) 2016/943.

_Article 9_
_Compensation for making data available_

1. Any compensation agreed between a data holder and a data recipient for making data
available shall be reasonable.

2. Where the data recipient is a micro, small or medium enterprise, as defined in Article
2 of the Annex to Recommendation 2003/361/EC, any compensation agreed shall not
exceed the costs directly related to making the data available to the data recipient and
which are attributable to the request. Article 8(3) shall apply accordingly.

3. This Article shall not preclude other Union law or national legislation implementing
Union law from excluding compensation for making data available or providing for
lower compensation.

4. The data holder shall provide the data recipient with information setting out the basis
for the calculation of the compensation in sufficient detail so that the data recipient
can verify that the requirements of paragraph 1 and, where applicable, paragraph 2

are met.

_Article 10_
_Dispute settlement_

1. Data holders and data recipients shall have access to dispute settlement bodies,
certified in accordance with paragraph 2 of this Article, to settle disputes in relation
to the determination of fair, reasonable and non-discriminatory terms for and the
transparent manner of making data available in accordance with Articles 8 and 9.

2. The Member State where the dispute settlement body is established shall, at the
request of that body, certify the body, where the body has demonstrated that it meets
all of the following conditions:

(a) it is impartial and independent, and it will issue its decisions in accordance
with clear and fair rules of procedure;

(b) it has the necessary expertise in relation to the determination of fair, reasonable
and non-discriminatory terms for and the transparent manner of making data
available, allowing the body to effectively determine those terms;

(c) it is easily accessible through electronic communication technology;

(d) it is capable of issuing its decisions in a swift, efficient and cost-effective
manner and in at least one official language of the Union.

# EN 47 EN

If no dispute settlement body is certified in a Member State by [date of application of
the Regulation], that Member State shall establish and certify a dispute settlement
body that fulfils the conditions set out in points (a) to (d) of this paragraph.

3. Member States shall notify to the Commission the dispute settlement bodies certified
in accordance with paragraph 2. The Commission shall publish a list of those bodies
on a dedicated website and keep it updated.

4. Dispute settlement bodies shall make the fees, or the mechanisms used to determine
the fees, known to the parties concerned before those parties request a decision.

5. Dispute settlement bodies shall refuse to deal with a request to resolve a dispute that
has already been brought before another dispute settlement body or before a court or
a tribunal of a Member State.

6. Dispute settlement bodies shall grant the parties the possibility, within a reasonable
period of time, to express their point of view on matters those parties have brought
before those bodies. In that context, dispute settlement bodies shall provide those
parties with the submissions of the other party and any statements made by experts.
Those bodies shall grant the parties the possibility to comment on those submissions
and statements.

7. Dispute settlement bodies shall issue their decision on matters referred to them no
later than 90 days after the request for a decision has been made. Those decisions
shall be in writing or on a durable medium and shall be supported by a statement of
reasons supporting the decision.

8. The decision of the dispute settlement body shall only be binding on the parties if the
parties have explicitly consented to its binding nature prior to the start of the dispute
settlement proceedings.

9. This Article does not affect the right of the parties to seek an effective remedy before
a court or tribunal of a Member State.

_Article 11_
_Technical protection measures and provisions on unauthorised use or disclosure of data_

1. The data holder may apply appropriate technical protection measures, including
smart contracts, to prevent unauthorised access to the data and to ensure compliance
with Articles 5, 6, 9 and 10, as well as with the agreed contractual terms for making
data available. Such technical protection measures shall not be used as a means to
hinder the user’s right to effectively provide data to third parties pursuant to Article 5
or any right of a third party under Union law or national legislation implementing
Union law as referred to in Article 8(1).

2. A data recipient that has, for the purposes of obtaining data, provided inaccurate or
false information to the data holder, deployed deceptive or coercive means or abused
evident gaps in the technical infrastructure of the data holder designed to protect the
data, has used the data made available for unauthorised purposes or has disclosed
those data to another party without the data holder’s authorisation, shall without
undue delay, unless the data holder or the user instruct otherwise:

# EN 48 EN

(a) destroy the data made available by the data holder and any copies thereof;

(b) end the production, offering, placing on the market or use of goods, derivative
data or services produced on the basis of knowledge obtained through such
data, or the importation, export or storage of infringing goods for those
purposes, and destroy any infringing goods.

3. Paragraph 2, point (b), shall not apply in either of the following cases:

(a) use of the data has not caused significant harm to the data holder;

(b) it would be disproportionate in light of the interests of the data holder.

_Article 12_
_Scope of obligations for data holders legally obliged to make data available_

1. This Chapter shall apply where a data holder is obliged under Article 5, or under
Union law or national legislation implementing Union law, to make data available to
a data recipient.

2. Any contractual term in a data sharing agreement which, to the detriment of one
party, or, where applicable, to the detriment of the user, excludes the application of
this Chapter, derogates from it, or varies its effect, shall not be binding on that party.

3. This Chapter shall only apply in relation to obligations to make data available under
Union law or national legislation implementing Union law, which enter into force
after [date of application of the Regulation].

### **CHAPTER IV** **UNFAIR TERMS RELATED TO DATA ACCESS AND USE** **BETWEEN ENTERPRISES**

_Article 13_
_Unfair contractual terms unilaterally imposed on a micro, small or medium-sized enterprise_

1. A contractual term, concerning the access to and use of data or the liability and
remedies for the breach or the termination of data related obligations which has been
unilaterally imposed by an enterprise on a micro, small or medium-sized enterprise
as defined in Article 2 of the Annex to Recommendation 2003/361/EC shall not be
binding on the latter enterprise if it is unfair.

2. A contractual term is unfair if it is of such a nature that its use grossly deviates from
good commercial practice in data access and use, contrary to good faith and fair
dealing.

3. A contractual term is unfair for the purposes of this Article if its object or effect is to:

(a) exclude or limit the liability of the party that unilaterally imposed the term for
intentional acts or gross negligence;

# EN 49 EN

(b) exclude the remedies available to the party upon whom the term has been
unilaterally imposed in case of non-performance of contractual obligations or
the liability of the party that unilaterally imposed the term in case of breach of
those obligations;

(c) give the party that unilaterally imposed the term the exclusive right to
determine whether the data supplied are in conformity with the contract or to
interpret any term of the contract.

4. A contractual term is presumed unfair for the purposes of this Article if its object or
effect is to:

(a) inappropriately limit the remedies in case of non-performance of contractual
obligations or the liability in case of breach of those obligations;

(b) allow the party that unilaterally imposed the term to access and use data of the
other contracting party in a manner that is significantly detrimental to the
legitimate interests of the other contracting party;

(c) prevent the party upon whom the term has been unilaterally imposed from
using the data contributed or generated by that party during the period of the
contract, or to limit the use of such data to the extent that that party is not
entitled to use, capture, access or control such data or exploit the value of such
data in a proportionate manner;

(d) prevent the party upon whom the term has been unilaterally imposed from
obtaining a copy of the data contributed or generated by that party during the
period of the contract or within a reasonable period after the termination
thereof;

(e) enable the party that unilaterally imposed the term to terminate the contract
with an unreasonably short notice, taking into consideration the reasonable
possibilities of the other contracting party to switch to an alternative and
comparable service and the financial detriment caused by such termination,
except where there are serious grounds for doing so.

5. A contractual term shall be considered to be unilaterally imposed within the meaning
of this Article if it has been supplied by one contracting party and the other
contracting party has not been able to influence its content despite an attempt to
negotiate it. The contracting party that supplied a contractual term bears the burden
of proving that that term has not been unilaterally imposed.

6. Where the unfair contractual term is severable from the remaining terms of the
contract, those remaining terms shall remain binding.

7. This Article does not apply to contractual terms defining the main subject matter of
the contract or to contractual terms determining the price to be paid.

8. The parties to a contract covered by paragraph 1 may not exclude the application of
this Article, derogate from it, or vary its effects.

# EN 50 EN

### **CHAPTER V** **MAKING DATA AVAILABLE TO PUBLIC SECTOR BODIES** **AND UNION INSTITUTIONS, AGENCIES OR BODIES BASED** **ON EXCEPTIONAL NEED**

_Article 14_
_Obligation to make data available based on exceptional need_

1. Upon request, a data holder shall make data available to a public sector body or to a
Union institution, agency or body demonstrating an exceptional need to use the data
requested.

2. This Chapter shall not apply to small and micro enterprises as defined in Article 2 of
the Annex to Recommendation 2003/361/EC.

_Article 15_
_Exceptional need to use data_

An exceptional need to use data within the meaning of this Chapter shall be deemed to exist in
any of the following circumstances:

(a) where the data requested is necessary to respond to a public emergency;

(b) where the data request is limited in time and scope and necessary to prevent a
public emergency or to assist the recovery from a public emergency;

(c) where the lack of available data prevents the public sector body or Union
institution, agency or body from fulfilling a specific task in the public interest
that has been explicitly provided by law; and

(1) the public sector body or Union institution, agency or body has been
unable to obtain such data by alternative means, including by purchasing
the data on the market at market rates or by relying on existing
obligations to make data available, and the adoption of new legislative
measures cannot ensure the timely availability of the data; or

(2) obtaining the data in line with the procedure laid down in this Chapter
would substantively reduce the administrative burden for data holders or
other enterprises.

_Article 16_
_Relationship with other obligations to make data available to public sector bodies and Union_

_institutions, agencies and bodies_

1. This Chapter shall not affect obligations laid down in Union or national law for the
purposes of reporting, complying with information requests or demonstrating or
verifying compliance with legal obligations.

# EN 51 EN

2. The rights from this Chapter shall not be exercised by public sector bodies and Union
institutions, agencies and bodies in order to carry out activities for the prevention,
investigation, detection or prosecution of criminal or administrative offences or the
execution of criminal penalties, or for customs or taxation administration. This
Chapter does not affect the applicable Union and national law on the prevention,
investigation, detection or prosecution of criminal or administrative offences or the
execution of criminal or administrative penalties, or for customs or taxation
administration.

_Article 17_
_Requests for data to be made available_

1. Where requesting data pursuant to Article 14(1), a public sector body or a Union
institution, agency or body shall:

(a) specify what data are required;

(b) demonstrate the exceptional need for which the data are requested;

(c) explain the purpose of the request, the intended use of the data requested, and
the duration of that use;

(d) state the legal basis for requesting the data;

(e) specify the deadline by which the data are to be made available or within which
the data holder may request the public sector body, Union institution, agency or
body to modify or withdraw the request.

2. A request for data made pursuant to paragraph 1 of this Article shall:

(a) be expressed in clear, concise and plain language understandable to the data
holder;

(b) be proportionate to the exceptional need, in terms of the granularity and
volume of the data requested and frequency of access of the data requested;

(c) respect the legitimate aims of the data holder, taking into account the
protection of trade secrets and the cost and effort required to make the data
available;

(d) concern, insofar as possible, non-personal data;

(e) inform the data holder of the penalties that shall be imposed pursuant to Article
33 by a competent authority referred to in Article 31 in the event of noncompliance with the request;

(f) be made publicly available online without undue delay.

3. A public sector body or a Union institution, agency or body shall not make data
obtained pursuant to this Chapter available for reuse within the meaning of Directive
(EU) 2019/1024. Directive (EU) 2019/1024 shall not apply to the data held by public
sector bodies obtained pursuant to this Chapter.

# EN 52 EN

4. Paragraph 3 does not preclude a public sector body or a Union institution, agency or
body to exchange data obtained pursuant to this Chapter with another public sector
body, Union institution, agency or body, in view of completing the tasks in Article
15 or to make the data available to a third party in cases where it has outsourced, by
means of a publicly available agreement, technical inspections or other functions to
this third party. The obligations on public sector bodies, Union institutions, agencies
or bodies pursuant to Article 19 apply.

Where a public sector body or a Union institution, agency or body transmits or makes data

available under this paragraph, it shall notify the data holder from whom the data was
received.

_Article 18_
_Compliance with requests for data_

1. A data holder receiving a request for access to data under this Chapter shall make the
data available to the requesting public sector body or a Union institution, agency or
body without undue delay.

2. Without prejudice to specific needs regarding the availability of data defined in
sectoral legislation, the data holder may decline or seek the modification of the
request within 5 working days following the receipt of a request for the data
necessary to respond to a public emergency and within 15 working days in other
cases of exceptional need, on either of the following grounds:

(a) the data is unavailable;

(b) the request does not meet the conditions laid down in Article 17(1) and (2).

3. In case of a request for data necessary to respond to a public emergency, the data
holder may also decline or seek modification of the request if the data holder already
provided the requested data in response to previously submitted request for the same
purpose by another public sector body or Union institution agency or body and the
data holder has not been notified of the destruction of the data pursuant to Article
19(1), point (c).

4. If the data holder decides to decline the request or to seek its modification in
accordance with paragraph 3, it shall indicate the identity of the public sector body or
Union institution agency or body that previously submitted a request for the same

purpose.

5. Where compliance with the request to make data available to a public sector body or
a Union institution, agency or body requires the disclosure of personal data, the data
holder shall take reasonable efforts to pseudonymise the data, insofar as the request
can be fulfilled with pseudonymised data.

6. Where the public sector body or the Union institution, agency or body wishes to
challenge a data holder’s refusal to provide the data requested, or to seek
modification of the request, or where the data holder wishes to challenge the request,
the matter shall be brought to the competent authority referred to in Article 31.

# EN 53 EN

_Article 19_
_Obligations of public sector bodies and Union institutions, agencies and bodies_

1. A public sector body or a Union institution, agency or body having received data
pursuant to a request made under Article 14 shall:

(a) not use the data in a manner incompatible with the purpose for which they were
requested;

(b) implement, insofar as the processing of personal data is necessary, technical
and organisational measures that safeguard the rights and freedoms of data
subjects;

(c) destroy the data as soon as they are no longer necessary for the stated purpose
and inform the data holder that the data have been destroyed.

2. Disclosure of trade secrets or alleged trade secrets to a public sector body or to a
Union institution, agency or body shall only be required to the extent that it is strictly
necessary to achieve the purpose of the request. In such a case, the public sector body
or the Union institution, agency or body shall take appropriate measures to preserve
the confidentiality of those trade secrets.

_Article 20_
_Compensation in cases of exceptional need_

1. Data made available to respond to a public emergency pursuant to Article 15, point
(a), shall be provided free of charge.

2. Where the data holder claims compensation for making data available in compliance
with a request made pursuant to Article 15, points (b) or (c), such compensation shall
not exceed the technical and organisational costs incurred to comply with the request
including, where necessary, the costs of anonymisation and of technical adaptation,
plus a reasonable margin. Upon request of the public sector body or the Union
institution, agency or body requesting the data, the data holder shall provide
information on the basis for the calculation of the costs and the reasonable margin.

_Article 21_
_Contribution of research organisations or statistical bodies in the context of exceptional_

_needs_

1. A public sector body or a Union institution, agency or body shall be entitled to share
data received under this Chapter with individuals or organisations in view of carrying
out scientific research or analytics compatible with the purpose for which the data
was requested, or to national statistical institutes and Eurostat for the compilation of
official statistics.

2. Individuals or organisations receiving the data pursuant to paragraph 1 shall act on a
not-for-profit basis or in the context of a public-interest mission recognised in Union
or Member State law. They shall not include organisations upon which commercial

# EN 54 EN

undertakings have a decisive influence or which could result in preferential access to
the results of the research.

3. Individuals or organisations receiving the data pursuant to paragraph 1 shall comply
with the provisions of Article 17(3) and Article 19.

4. Where a public sector body or a Union institution, agency or body transmits or
makes data available under paragraph 1, it shall notify the data holder from whom
the data was received.

_Article 22_
_Mutual assistance and cross-border cooperation_

1. Public sector bodies and Union institutions, agencies and bodies shall cooperate and
assist one another, to implement this Chapter in a consistent manner.

2. Any data exchanged in the context of assistance requested and provided pursuant to
paragraph 1 shall not be used in a manner incompatible with the purpose for which
they were requested.

3. Where a public sector body intends to request data from a data holder established in
another Member State, it shall first notify the competent authority of that Member
State as referred to in Article 31, of that intention. This requirement shall also apply
to requests by Union institutions, agencies and bodies.

4. After having been notified in accordance with paragraph 3, the relevant competent
authority shall advise the requesting public sector body of the need, if any, to
cooperate with public sector bodies of the Member State in which the data holder is
established, with the aim of reducing the administrative burden on the data holder in
complying with the request. The requesting public sector body shall take the advice
of the relevant competent authority into account.

### **CHAPTER VI** **SWITCHING BETWEEN DATA PROCESSING SERVICES**

_Article 23_
_Removing obstacles to effective switching between providers of data processing services_

1. Providers of a data processing service shall take the measures provided for in
Articles 24, 25 and 26 to ensure that customers of their service can switch to another
data processing service, covering the same service type, which is provided by a
different service provider. In particular, providers of data processing service shall
remove commercial, technical, contractual and organisational obstacles, which
inhibit customers from:

(a) terminating, after a maximum notice period of 30 calendar days, the
contractual agreement of the service;

# EN 55 EN

(b) concluding new contractual agreements with a different provider of data
processing services covering the same service type;

(c) porting its data, applications and other digital assets to another provider of data
processing services;

(d) maintaining functional equivalence of the service in the IT-environment of the
different provider or providers of data processing services covering the same
service type, in accordance with Article 26.

2. Paragraph 1 shall only apply to obstacles that are related to the services, contractual
agreements or commercial practices provided by the original provider.

_Article 24_
_Contractual terms concerning switching between providers of data processing services_

1. The rights of the customer and the obligations of the provider of a data processing
service in relation to switching between providers of such services shall be clearly set
out in a written contract. Without prejudice to Directive (EU) 2019/770, that contract
shall include at least the following:

(a) clauses allowing the customer, upon request, to switch to a data processing
service offered by another provider of data processing service or to port all
data, applications and digital assets generated directly or indirectly by the
customer to an on-premise system, in particular the establishment of a
mandatory maximum transition period of 30 calendar days, during which the
data processing service provider shall:

(1) assist and, where technically feasible, complete the switching process;

(2) ensure full continuity in the provision of the respective functions or
services.

(b) an exhaustive specification of all data and application categories exportable
during the switching process, including, at minimum, all data imported by the
customer at the inception of the service agreement and all data and metadata
created by the customer and by the use of the service during the period the
service was provided, including, but not limited to, configuration parameters,
security settings, access rights and access logs to the service;

(c) a minimum period for data retrieval of at least 30 calendar days, starting after
the termination of the transition period that was agreed between the customer
and the service provider, in accordance with paragraph 1, point (a) and
paragraph 2.

2. Where the mandatory transition period as defined in paragraph 1, points (a) and (c)
of this Article is technically unfeasible, the provider of data processing services shall
notify the customer within 7 working days after the switching request has been made,
duly motivating the technical unfeasibility with a detailed report and indicating an
alternative transition period, which may not exceed 6 months. In accordance with

# EN 56 EN

paragraph 1 of this Article, full service continuity shall be ensured throughout the
alternative transition period against reduced charges, referred to in Article 25(2).

_Article 25_
_Gradual withdrawal of switching charges_

1. From [date X+3yrs] onwards, providers of data processing services shall not impose
any charges on the customer for the switching process.

2. From [date X, the date of entry into force of the Data Act] until [date X+3yrs],
providers of data processing services may impose reduced charges on the customer
for the switching process.

3. The charges referred to in paragraph 2 shall not exceed the costs incurred by the
provider of data processing services that are directly linked to the switching process
concerned.

4. The Commission is empowered to adopt delegated acts in accordance with Article 38
to supplement this Regulation in order to introduce a monitoring mechanism for the
Commission to monitor switching charges imposed by data processing service
providers on the market to ensure that the withdrawal of switching charges as
described in paragraph 1 of this Article will be attained in accordance with the
deadline provided in the same paragraph.

_Article 26_
_Technical aspects of switching_

1. Providers of data processing services that concern scalable and elastic computing
resources limited to infrastructural elements such as servers, networks and the virtual
resources necessary for operating the infrastructure, but that do not provide access to
the operating services, software and applications that are stored, otherwise processed,
or deployed on those infrastructural elements, shall ensure that the customer, after
switching to a service covering the same service type offered by a different provider
of data processing services, enjoys functional equivalence in the use of the new
service.

2. For data processing services other than those covered by paragraph 1, providers of
data processing services shall make open interfaces publicly available and free of
charge.

3. For data processing services other than those covered by paragraph 1, providers of
data processing services shall ensure compatibility with open interoperability
specifications or European standards for interoperability that are identified in
accordance with Article 29(5) of this Regulation.

4. Where the open interoperability specifications or European standards referred to in
paragraph 3 do not exist for the service type concerned, the provider of data
processing services shall, at the request of the customer, export all data generated or
co-generated, including the relevant data formats and data structures, in a structured,
commonly used and machine-readable format.

# EN 57 EN

### **CHAPTER VII** **INTERNATIONAL CONTEXTS NON-PERSONAL DATA** **SAFEGUARDS**

_Article 27_
_International access and transfer_

1. Providers of data processing services shall take all reasonable technical, legal and
organisational measures, including contractual arrangements, in order to prevent
international transfer or governmental access to non-personal data held in the Union
where such transfer or access would create a conflict with Union law or the national
law of the relevant Member State, without prejudice to paragraph 2 or 3.

2. Any decision or judgment of a court or tribunal and any decision of an administrative
authority of a third country requiring a provider of data processing services to
transfer from or give access to non-personal data within the scope of this Regulation
held in the Union may only be recognised or enforceable in any manner if based on
an international agreement, such as a mutual legal assistance treaty, in force between
the requesting third country and the Union or any such agreement between the
requesting third country and a Member State.

3. In the absence of such an international agreement, where a provider of data
processing services is the addressee of a decision of a court or a tribunal or a decision
of an administrative authority of a third country to transfer from or give access to
non-personal data within the scope of this Regulation held in the Union and
compliance with such a decision would risk putting the addressee in conflict with
Union law or with the national law of the relevant Member State, transfer to or
access to such data by that third-country authority shall take place only:

(a) where the third-country system requires the reasons and proportionality of the
decision or judgement to be set out, and it requires such decision or judgement,
as the case may be, to be specific in character, for instance by establishing a
sufficient link to certain suspected persons, or infringements;

(b) the reasoned objection of the addressee is subject to a review by a competent
court or tribunal in the third-country; and

(c) the competent court or tribunal issuing the decision or judgement or reviewing
the decision of an administrative authority is empowered under the law of that
country to take duly into account the relevant legal interests of the provider of
the data protected by Union law or national law of the relevant Member State.

The addressee of the decision may ask the opinion of the relevant competent bodies or

authorities, pursuant to this Regulation, in order to determine whether these
conditions are met, notably when it considers that the decision may relate to
commercially sensitive data, or may impinge on national security or defence interests
of the Union or its Member States.

# EN 58 EN

–
The European Data Innovation Board established under Regulation [xxx DGA] shall advise

and assist the Commission in developing guidelines on the assessment of whether
these conditions are met.

4. If the conditions in paragraph 2 or 3 are met, the provider of data processing services
shall provide the minimum amount of data permissible in response to a request,
based on a reasonable interpretation thereof.

5. The provider of data processing services shall inform the data holder about the
existence of a request of an administrative authority in a third-country to access its
data before complying with its request, except in cases where the request serves law
enforcement purposes and for as long as this is necessary to preserve the
effectiveness of the law enforcement activity.

### **CHAPTER VIII** **INTEROPERABILITY**

_Article 28_
_Essential requirements regarding interoperability_

1. Operators of data spaces shall comply with, the following essential requirements to
facilitate interoperability of data, data sharing mechanisms and services:

(a) the dataset content, use restrictions, licences, data collection methodology, data
quality and uncertainty shall be sufficiently described to allow the recipient to
find, access and use the data;

(b) the data structures, data formats, vocabularies, classification schemes,
taxonomies and code lists shall be described in a publicly available and
consistent manner;

(c) the technical means to access the data, such as application programming
interfaces, and their terms of use and quality of service shall be sufficiently
described to enable automatic access and transmission of data between parties,
including continuously or in real-time in a machine-readable format;

(d) the means to enable the interoperability of smart contracts within their services
and activities shall be provided.

These requirements can have a generic nature or concern specific sectors, while taking fully

into account the interrelation with requirements coming from other Union or national
sectoral legislation.

2. The Commission is empowered to adopt delegated acts, in accordance with Article
38 to supplement this Regulation by further specifying the essential requirements
referred to in paragraph 1.

3. Operators of data spaces that meet the harmonised standards or parts thereof
published by reference in the Official Journal of the European Union shall be

# EN 59 EN

presumed to be in conformity with the essential requirements referred to in paragraph
1 of this Article, to the extent those standards cover those requirements.

4. The Commission may, in accordance with Article 10 of Regulation (EU) No
1025/2012, request one or more European standardisation organisations to draft
harmonised standards that satisfy the essential requirements under paragraph 1 of this
Article

5. The Commission shall, by way of implementing acts, adopt common specifications,
where harmonised standards referred to in paragraph 4 of this Article do not exist or
in case it considers that the relevant harmonised standards are insufficient to ensure
conformity with the essential requirements in paragraph 1 of this Article, where
necessary, with respect to any or all of the requirements laid down in paragraph 1 of
this Article. Those implementing acts shall be adopted in accordance with the
examination procedure referred to in Article 39(2).

6. The Commission may adopt guidelines laying down interoperability specifications
for the functioning of common European data spaces, such as architectural models
and technical standards implementing legal rules and arrangements between parties
that foster data sharing, such as regarding rights to access and technical translation of
consent or permission.

_Article 29_
_Interoperability for data processing services_

1. Open interoperability specifications and European standards for the interoperability
of data processing services shall:

(a) be performance oriented towards achieving interoperability between different
data processing services that cover the same service type;

(b) enhance portability of digital assets between different data processing services
that cover the same service type;

(c) guarantee, where technically feasible, functional equivalence between different
data processing services that cover the same service type.

2. Open interoperability specifications and European standards for the interoperability
of data processing services shall address:

(a) the cloud interoperability aspects of transport interoperability, syntactic
interoperability, semantic data interoperability, behavioural
interoperability and policy interoperability;

(b) the cloud data portability aspects of data syntactic portability, data
semantic portability and data policy portability;

(c) the cloud application aspects of application syntactic portability,
application instruction portability, application metadata portability,
application behaviour portability and application policy portability.

# EN 60 EN

3. Open interoperability specifications shall comply with paragraph 3 and 4 of Annex II
of Regulation (EU) No 1025/2012.

4. The Commission may, in accordance with Article 10 of Regulation (EU) No
1025/2012, request one or more European standardisation organisations to draft
European standards applicable to specific service types of data processing services.

5. For the purposes of Article 26(3) of this Regulation, the Commission shall be
empowered to adopt delegated acts, in accordance with Article 38, to publish the
reference of open interoperability specifications and European standards for the
interoperability of data processing services in central Union standards repository for
the interoperability of data processing services, where these satisfy the criteria
specified in paragraph 1 and 2 of this Article.

_Article 30_
_Essential requirements regarding smart contracts for data sharing_

1. The vendor of an application using smart contracts or, in the absence thereof, the
person whose trade, business or profession involves the deployment of smart
contracts for others in the context of an agreement to make data available shall
comply with the following essential requirements:

(a) robustness: ensure that the smart contract has been designed to offer a very
high degree of robustness to avoid functional errors and to withstand
manipulation by third parties;

(b) safe termination and interruption: ensure that a mechanism exists to terminate
the continued execution of transactions: the smart contract shall include
internal functions which can reset or instruct the contract to stop or interrupt
the operation to avoid future (accidental) executions;

(c) data archiving and continuity: foresee, if a smart contract must be terminated or
deactivated, a possibility to archive transactional data, the smart contract logic
and code to keep the record of the operations performed on the data in the past
(auditability); and

(d) access control: a smart contract shall be protected through rigorous access
control mechanisms at the governance and smart contract layers.

2. The vendor of a smart contract or, in the absence thereof, the person whose trade,
business or profession involves the deployment of smart contracts for others in the
context of an agreement to make data available shall perform a conformity
assessment with a view to fulfilling the essential requirements under paragraph 1
and, on the fulfilment of the requirements, issue an EU declaration of conformity.

3. By drawing up the EU declaration of conformity, the vendor of an application using
smart contracts or, in the absence thereof, the person whose trade, business or
profession involves the deployment of smart contracts for others in the context of an
agreement to make data available shall be responsible for compliance with the
requirements under paragraph 1.

# EN 61 EN

4. A smart contract that meets the harmonised standards or the relevant parts thereof
drawn up and published in the Official Journal of the European Union shall be
presumed to be in conformity with the essential requirements under paragraph 1 of
this Article to the extent those standards cover those requirements.

5. The Commission may, in accordance with Article 10 of Regulation (EU) No
1025/2012, request one or more European standardisation organisations to draft
harmonised standards that satisfy the essential the requirements under paragraph 1 of
this Article.

6. Where harmonised standards referred to in paragraph 4 of this Article do not exist or
where the Commission considers that the relevant harmonised standards are
insufficient to ensure conformity with the essential requirements in paragraph 1 of
this Article in a cross-border context, the Commission may, by way of implementing
acts, adopt common specifications in respect of the essential requirements set out in
paragraph 1 of this Article. Those implementing acts shall be adopted in accordance
with the examination procedure referred to in Article 39(2).

### **CHAPTER IX** **IMPLEMENTATION AND ENFORCEMENT**

_Article 31_
_Competent authorities_

1. Each Member State shall designate one or more competent authorities as responsible
for the application and enforcement of this Regulation. Member States may establish
one or more new authorities or rely on existing authorities.

2. Without prejudice to paragraph 1 of this Article:

(a) the independent supervisory authorities responsible for monitoring the
application of Regulation (EU) 2016/679 shall be responsible for monitoring
the application of this Regulation insofar as the protection of personal data is
concerned. Chapters VI and VII of Regulation (EU) 2016/679 shall apply
mutatis mutandis. The tasks and powers of the supervisory authorities shall be
exercised with regard to the processing of personal data;

(b) for specific sectoral data exchange issues related to the implementation of this
Regulation, the competence of sectoral authorities shall be respected;

(c) the national competent authority responsible for the application and
enforcement of Chapter VI of this Regulation shall have experience in the field
of data and electronic communications services.

3. Member States shall ensure that the respective tasks and powers of the competent
authorities designated pursuant to paragraph 1 of this Article are clearly defined and
include:

(a) promoting awareness among users and entities falling within scope of this
Regulation of the rights and obligations under this Regulation;

# EN 62 EN

(b) handling complaints arising from alleged violations of this Regulation, and
investigating, to the extent appropriate, the subject matter of the complaint and
informing the complainant of the progress and the outcome of the investigation
within a reasonable period, in particular if further investigation or coordination
with another competent authority is necessary;

(c) conducting investigations into matters that concern the application of this
Regulation, including on the basis of information received from another
competent authority or other public authority;

(d) imposing, through administrative procedures, dissuasive financial penalties
which may include periodic penalties and penalties with retroactive effect, or
initiating legal proceedings for the imposition of fines;

(e) monitoring technological developments of relevance for the making available
and use of data;

(f) cooperating with competent authorities of other Member States to ensure the
consistent application of this Regulation, including the exchange of all relevant
information by electronic means, without undue delay;

(g) ensuring the online public availability of requests for access to data made by
public sector bodies in the case of public emergencies under Chapter V;

(h) cooperating with all relevant competent authorities to ensure that the
obligations of Chapter VI are enforced consistently with other Union
legislation and self-regulation applicable to providers of data processing
service;

(i) ensuring that charges for the switching between providers of data processing
services are withdrawn in accordance with Article 25.

4. Where a Member State designates more than one competent authority, the competent
authorities shall, in the exercise of the tasks and powers assigned to them under
paragraph 3 of this Article, cooperate with each other, including, as appropriate, with
the supervisory authority responsible for monitoring the application of Regulation
(EU) 2016/679, to ensure the consistent application of this Regulation. In such cases,
relevant Member States shall designate a coordinating competent authority.

5. Member States shall communicate the name of the designated competent authorities
and their respective tasks and powers and, where applicable, the name of the
coordinating competent authority to the Commission. The Commission shall
maintain a public register of those authorities.

6. When carrying out their tasks and exercising their powers in accordance with this
Regulation, the competent authorities shall remain free from any external influence,
whether direct or indirect, and shall neither seek nor take instructions from any other
public authority or any private party.

7. Member States shall ensure that the designated competent authorities are provided
with the necessary resources to adequately carry out their tasks in accordance with
this Regulation.

# EN 63 EN

_Article 32_
_Right to lodge a complaint with a competent authority_

1. Without prejudice to any other administrative or judicial remedy, natural and legal
persons shall have the right to lodge a complaint, individually or, where relevant,
collectively, with the relevant competent authority in the Member State of their
habitual residence, place of work or establishment if they consider that their rights
under this Regulation have been infringed.

2. The competent authority with which the complaint has been lodged shall inform the
complainant of the progress of the proceedings and of the decision taken.

3. Competent authorities shall cooperate to handle and resolve complaints, including by
exchanging all relevant information by electronic means, without undue delay. This
cooperation shall not affect the specific cooperation mechanism provided for by
Chapters VI and VII of Regulation (EU) 2016/679.

_Article 33_

_Penalties_

1. Member States shall lay down the rules on penalties applicable to infringements of
this Regulation and shall take all measures necessary to ensure that they are
implemented. The penalties provided for shall be effective, proportionate and
dissuasive.

2. Member States shall by [date of application of the Regulation] notify the
Commission of those rules and measures and shall notify it without delay of any
subsequent amendment affecting them.

3. For infringements of the obligations laid down in Chapter II, III and V of this
Regulation, the supervisory authorities referred to in Article 51 of the Regulation
(EU) 2016/679 may within their scope of competence impose administrative fines in
line with Article 83 of Regulation (EU) 2016/679 and up to the amount referred to in
Article 83(5) of that Regulation.

4. For infringements of the obligations laid down in Chapter V of this Regulation, the
supervisory authority referred to in Article 52 of Regulation (EU) 2018/1725 may
impose within its scope of competence administrative fines in accordance with
Article 66 of Regulation (EU) 2018/1725 up to the amount referred to in Article
66(3) of that Regulation.

_Article 34_

_Model contractual terms_

The Commission shall develop and recommend non-binding model contractual terms on data
access and use to assist parties in drafting and negotiating contracts with balanced contractual
rights and obligations.

# EN 64 EN

### **CHAPTER X** **SUI GENERIS RIGHT UNDER DIRECTIVE 1996/9/EC**

_Article 35_
_Databases containing certain data_

In order not to hinder the exercise of the right of users to access and use such data in
accordance with Article 4 of this Regulation or of the right to share such data with third
parties in accordance with Article 5 of this Regulation, the _sui generis_ right provided for in
Article 7 of Directive 96/9/EC does not apply to databases containing data obtained from or
generated by the use of a product or a related service.

### **CHAPTER XI** **FINAL PROVISIONS**

_Article 36_
_Amendment to Regulation (EU) No 2017/2394_

In the Annex to Regulation (EU) No 2017/2394 the following point is added:

‘29. [Regulation (EU) XXX of the European Parliament and of the Council [Data Act]].’

_Article 37_
_Amendment to Directive (EU) 2020/1828_

In the Annex to Directive (EU) 2020/1828 the following point is added:

‘67. [Regulation (EU) XXX of the European Parliament and of the Council [Data Act]]’

_Article 38_
_Exercise of the delegation_

1. The power to adopt delegated acts is conferred on the Commission subject to the
conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Articles 25(4), 28(2) and 29(5) shall
be conferred on the Commission for an indeterminate period of time from […].

3. The delegation of power referred to in Articles 25(4), 28(2) and 29(5) may be
revoked at any time by the European Parliament or by the Council. A decision to
revoke shall put an end to the delegation of the power specified in that decision. It
shall take effect the day following the publication of the decision in the Official
Journal of the European Union or at a later date specified therein. It shall not affect
the validity of any delegated acts already in force.

# EN 65 EN

4. Before adopting a delegated act, the Commission shall consult experts designated by
each Member State in accordance with the principles laid down in the
Interinstitutional Agreement on Better Law-Making of 13 April 2016.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to
the European Parliament and to the Council.

6. A delegated act adopted pursuant to Articles 25(4), 28(2) and 29(5) shall enter into
force only if no objection has been expressed either by the European Parliament or
by the Council within a period of three months of notification of that act to the
European Parliament and to the Council or if, before the expiry of that period, the
European Parliament and the Council have both informed the Commission that they
will not object. That period shall be extended by three months at the initiative of the
European Parliament or of the Council.

_Article 39_
_Committee procedure_

1. The Commission shall be assisted by a committee. That committee shall be a
committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No
182/2011 shall apply.

_Article 40_
_Other Union legal acts governing rights and obligations on data access and use_

1. The specific obligations for the making available of data between businesses,
between businesses and consumers, and on exceptional basis between businesses and
public bodies, in Union legal acts that entered into force on or before [xx XXX xxx],
and delegated or implementing acts based thereupon, shall remain unaffected.

2. This Regulation is without prejudice to Union legislation specifying, in light of the
needs of a sector, a common European data space, or an area of public interest,
further requirements, in particular in relation to:

(a) technical aspects of data access;

(b) limits on the rights of data holders to access or use certain data provided by

users;

(c) aspects going beyond data access and use.

_Article 41_

_Evaluation and review_

By [ _two years after the date of application of this Regulation_ ], the Commission shall carry out
an evaluation of this Regulation and submit a report on its main findings to the European
Parliament and to the Council as well as to the European Economic and Social Committee.
That evaluation shall assess, in particular:

# EN 66 EN

(a) other categories or types of data to be made accessible;

(b) the exclusion of certain categories of enterprises as beneficiaries under Article 5;

(c) other situations to be deemed as exceptional needs for the purpose of Article 15;

(d) changes in contractual practices of data processing service providers and whether this
results in sufficient compliance with Article 24;

(e) diminution of charges imposed by data processing service providers for the switching
process, in line with the gradual withdrawal of switching charges pursuant to Article
25.

_Article 42_
_Entry into force and application_

This Regulation shall enter into force on the twentieth day following that of its publication in
the Official Journal of the European Union.

It shall apply from [12 months after the date of entry into force of this Regulation].

Done at Brussels,

_For the European Parliament_ _For the Council_
_The President_ _The President_

# EN 67 EN