The European Commission has proposed a Data Act, which sets out rules and conditions for the access and use of data generated in the EU.
On 23 February 2022, the European Commission (EC) proposed a so-called “Data Act” that establishes new rules on who can use and access data generated in the EU across all economic sectors. It is part of the European strategy for data, which aims to create a single market for data, and will contribute to achieving the 2030 digital objectives. The now proposed Data Act complements the Data Governance Act that was first proposed by the EC in November 2020 and was agreed upon in November 2021 (see SwissCore article). While the Data Governance Act focuses on establishing structures and mechanisms that facilitate data sharing such as the development of common European data spaces, the Data Act now specifies the conditions under which certain people are able to access and use data.
With the Data Act, the EC intends to “ensure fairness in the digital environment, stimulate a competitive data market, open opportunities for data-driven innovation and make data more accessible for all”. With a large part of the data being generated still under-used, the EC aims to make more data available for reuse and they predict a €270 billion increase in EU GDP by 2028 as a result of the Data Act. The Data Act contains multiple provisions: Firstly, users should be able to access their own generated data and share it with third parties. Companies that hold data need to provide users with easy, free, and immediate access to their own data. This could help promote innovation and competition by encouraging manufacturers to invest in high-quality data generation. In order to prevent third parties from manipulating data users to provide their consent to data sharing, the EC has included specific measures in their proposal of the Data Act. Additionally, they intend to develop model contractual terms that companies can use to create fair data-sharing contracts. Moreover, the Data Act opens the possibility – limited to exceptional circumstances such as public emergencies like natural disasters or pandemics – for public sector bodies to use and access data from the private sector to respond to such emergencies. Furthermore, the proposal of the Data Act reduces current obstacles for data users to switch between different cloud data-processing services, eliminating high switching fees and ensuring that cloud services follow European standards on interoperability.
The Data Act also reviews certain aspects of the Database Directive, first developed in 1996 and then amended in 2019, relating to the legal protection of databases. The Data Act now ensures that databases containing data from Internet-of-Things (IoT) devices are not subject to separate legal protection, which makes it easier to use those databases. Since individual data users and businesses will be able to access and use their data, they would hold more information that can help them make their decisions more efficient, profitable and sustainable in the future. Furthermore, the increased competition in the data market would ensure that businesses and industrial players have more data available that they can use to develop new services and technologies.
In the coming weeks, the co-legislators, the Council of the EU and the European Parliament will assess the proposal and kick off the discussions. Once they have concluded their negotiations with the EC and adopted the Data Act, the legislative act will be immediately applicable in all Member States. However, it is still unclear when this is going to happen, as the EC did not provide a clear time horizon. Until then, the provisions in the Data Act are still subject to changes. The Parliament now needs to determine which committee will take the lead. We can expect that the same committees that handle the Data Governance Act will be working on this file: ITRE in the lead, with the Civil Liberties (LIBE), Legal Affairs (JURI) and IMCO Committees giving their respective opinions.