Commission Decision of 18 June 2013 on setting up the Commission expert group on cloud computing contracts

20.6.2013 EN Official Journal of the European Union C 174/6
COMMISSION DECISION
of 18 June 2013
on setting up the Commission expert group on cloud computing contracts
2013/C 174/04
THE EUROPEAN COMMISSION
,
Having regard to the Treaty on the Functioning of the European Union,
Whereas:
(1) On 27 September 2012, the Commission adopted a Communication to the European Parliament, the Council, the European Social and Economic Committee and the Committee of the Regions on ‘Unleashing the Potential of Cloud Computing in Europe’ (1). In the Communication the Commission underlines its aim of enabling and facilitating faster adoption of cloud computing throughout all sectors of the economy which can cut costs of information and communication technologies, and when combined with new digital business practices, can boost productivity, growth and jobs.
(2) Among other actions announced in the Communication, the Commission intends to work towards safe and fair contract terms and conditions for cloud computing contracts. This work responds to stakeholder concerns relating to cloud computing contracts. On the one hand, providers of cloud computing services indicated that the complexity and uncertainty relating to the existing legal framework make cross-border activity more difficult. On the other hand, although existing Union legislation protects consumers using cloud computing services, consumers are often unaware of their rights and are not informed by the provider in a sufficiently clear and unambiguous manner about the contractual conditions. Furthermore, representatives of consumers and small and medium-sized enterprises indicated that vague and unbalanced cloud computing contracts make them reluctant to take up cloud computing services. The Commission also intends to work on personal data protection aspects relevant to cloud computing contracts.
(3) User concerns relate among others to issues in cloud computing contracts such as direct and indirect liability and its possible limitations for instance for security breaches, data integrity, confidentiality or service continuity, remedies for service failures such as downtime or loss of data, unilateral modifications of the contract made by the provider after the conclusion of the contract, termination of the contract and its effects, including the issue of data preservation.
(4) The Commission intends to facilitate an improvement of the contractual arrangements between cloud computing service providers and consumers and small firms. The intended outcome is to build trust and facilitate the uptake and development of cloud computing services in the Union, considering their significant economic potential. It also intends to facilitate the application of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (2) to the extent that it is relevant to cloud computing contracts.
(5) The Commission intends to facilitate stakeholder agreement promoting the use of safe and fair terms and conditions in cloud computing contracts between cloud computing service providers and consumers and small firms. The Commission should work towards this goal with the active involvement of stakeholders drawing on their expertise and experience in the cloud computing sector. For this purpose, the Commission considers it appropriate to set up a group of experts on cloud computing contracts between cloud computing service providers and consumers and small firms. The tasks of the group shall be complementary to the work of the Commission on model terms for cloud computing service level agreements for contracts between cloud providers and professional users.
(6) The Commission has already addressed contract law-related problems which affect the confidence of consumers and businesses in the digital single market by the proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law (3). The proposal includes rules on the supply of ‘digital content’, which cover some aspects of cloud computing. The group should help to carry out complementary work on safe and fair contract terms and conditions for consumers and small firms for those cloud-related issues that lie beyond the scope of the Common European Sales Law.
(7) The group should include stakeholders, practitioners and organisations representing cloud services providers and customers, in particular consumers and small firms as well as representatives of legal professions or academics who have expertise in cloud computing contracts and in personal data protection aspects relevant to cloud computing contracts. The group may also include a limited number of specialists in the area of cloud computing contract law acting in their personal capacity. It should help identify best practices relating to cloud computing contracts and work towards ensuring that terms and conditions in cloud computing contracts are safe and fair.
(8) Rules on disclosure of information by members of the group of experts should be laid down.
(9) Personal data should be processed in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.
(10) It is appropriate to fix a period for the application of this Decision. The Commission will in due time consider the advisability of an extension,