keyboard_tab Data Act 2023/2854 EN
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- Article 1 Subject matter and scope
- Article 2 Definitions
- Article 3 Obligation to make product data and related service data accessible to the user
- Article 4 The rights and obligations of users and data holders with regard to access, use and making available product data and related service data
- Article 5 Right of the user to share data with third parties
- Article 6 Obligations of third parties receiving data at the request of the user
- Article 7 Scope of business-to-consumer and business-to-business data sharing obligations
- Article 8 Conditions under which data holders make data available to data recipients
- Article 9 Compensation for making data available
- Article 10 Dispute settlement
- Article 11 Technical protection measures on the unauthorised use or disclosure of data
- Article 12 Scope of obligations for data holders obliged pursuant to Union law to make data available
- Article 13 Unfair contractual terms unilaterally imposed on another enterprise
- Article 14 Obligation to make data available on the basis of an exceptional need
- Article 15 Exceptional need to use data
- Article 16 Relationship with other obligations to make data available to public sector bodies, the Commission, the European Central Bank and Union bodies
- Article 17 Requests for data to be made available
- Article 18 Compliance with requests for data
- Article 19 Obligations of public sector bodies, the Commission, the European Central Bank and Union bodies
- Article 20 Compensation in cases of an exceptional need
- Article 21 Sharing of data obtained in the context of an exceptional need with research organisations or statistical bodies
- Article 22 Mutual assistance and cross-border cooperation
- Article 23 Removing obstacles to effective switching
- Article 24 Scope of the technical obligations
- Article 25 Contractual terms concerning switching
- Article 26 Information obligation of providers of data processing services
- Article 27 Obligation of good faith
- Article 28 Contractual transparency obligations on international access and transfer
- Article 29 Gradual withdrawal of switching charges
- Article 30 Technical aspects of switching
- Article 31 Specific regime for certain data processing services
- Article 32 International governmental access and transfer
- Article 33 Essential requirements regarding interoperability of data, of data sharing mechanisms and services, as well as of common European data spaces
- Article 34 Interoperability for the purposes of in-parallel use of data processing services
- Article 35 Interoperability of data processing services
- Article 36 Essential requirements regarding smart contracts for executing data sharing agreements
- Article 37 Competent authorities and data coordinators
- Article 38 Right to lodge a complaint
- Article 39 Right to an effective judicial remedy
- Article 40 Penalties
- Article 41 Model contractual terms and standard contractual clauses
- Article 42 Role of the EDIB
- Article 43 Databases containing certain data
- Article 44 Other Union legal acts governing rights and obligations on data access and use
- Article 45 Exercise of the delegation
- Article 46 Committee procedure
- Article 47 Amendment to Regulation (EU) 2017/2394
- Article 48 Amendment to Directive (EU) 2020/1828
- Article 49 Evaluation and review
- Article 50 Entry into force and application
CHAPTER I
GENERAL PROVISIONS
CHAPTER II
BUSINESS TO CONSUMER AND BUSINESS TO BUSINESS DATA SHARING
CHAPTER III
OBLIGATIONS FOR DATA HOLDERS OBLIGED TO MAKE DATA AVAILABLE PURSUANT TO UNION LAW
CHAPTER IV
UNFAIR CONTRACTUAL TERMS RELATED TO DATA ACCESS AND USE BETWEEN ENTERPRISES
CHAPTER V
MAKING DATA AVAILABLE TO PUBLIC SECTOR BODIES, THE COMMISSION, THE EUROPEAN CENTRAL BANK AND UNION BODIES ON THE BASIS OF AN EXCEPTIONAL NEED
CHAPTER VI
SWITCHING BETWEEN DATA PROCESSING SERVICES
CHAPTER VII
UNLAWFUL INTERNATIONAL GOVERNMENTAL ACCESS AND TRANSFER OF NON-PERSONAL DATA
CHAPTER VIII
INTEROPERABILITY
CHAPTER IX
IMPLEMENTATION AND ENFORCEMENT
CHAPTER X
SUI GENERIS RIGHT UNDER DIRECTIVE 96/9/EC
CHAPTER XI
FINAL PROVISIONS
- data
- metadata
- personal data
- non-personal data
- connected product
- related service
- processing
- data processing service
- same service type
- data intermediation service
- data subject
- user
- data holder
- data recipient
- product data
- related service data
- readily available data
- trade secret
- trade secret holder
- profiling
- making available on the market
- placing on the market
- consumer
- enterprise
- small enterprise
- microenterprise
- Union bodies
- public sector body
- public emergency
- customer
- virtual assistants
- digital assets
- on-premises ICT infrastructure
- switching
- data egress charges
- switching charges
- functional equivalence
- exportable data
- smart contract
- interoperability
- common specifications
- harmonised standard
- term 26
- party 25
- unilaterally 18
- imposed 17
- contractual 16
- data 15
- contract 13
- such 9
- contracting 9
- been 9
- shall 8
- unfair 8
- terms 7
- case 6
- from 6
- supplied 5
- upon 5
- obligations 5
- a 5
- enterprise 5
- liability 5
- change 5
- whom 5
- access 4
- reasonable 4
- period 4
- which 4
- right 3
- exclude 3
- article 3
- limit 3
- terminate 3
- prevent 3
- within 3
- union 3
- specified 3
- termination 3
- breach 3
- remedies 3
- provided 3
- paragraph 3
- remaining 2
- non-performance 2
- manner 2
- effect 2
- during 2
- available 2
- enable 2
- generated 2
- notice 2
Article 13
Unfair contractual terms unilaterally imposed on another enterprise
1. A contractual term concerning access to and the use of data or liability and remedies for the breach or the termination of data related obligations, which has been unilaterally imposed by an enterprise on another enterprise, shall not be binding on the latter enterprise if it is unfair.
2. A contractual term which reflects mandatory provisions of Union law, or provisions of Union law which would apply if the contractual terms did not regulate the matter, shall not be considered to be unfair.
3. 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.
4. In particular, a contractual term shall be unfair for the purposes of paragraph 3, 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; |
| (b) | exclude the remedies available to the party upon whom the term has been unilaterally imposed in the case of non-performance of contractual obligations, or the liability of the party that unilaterally imposed the term in the case of a 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 contractual term. |
5. A contractual term shall be presumed to be unfair for the purposes of paragraph 3 if its object or effect is to:
| (a) | inappropriately limit remedies in the case of non-performance of contractual obligations or liability in the case of a breach of those obligations, or extend the liability of the enterprise upon whom the term has been unilaterally imposed; |
| (b) | allow the party that unilaterally imposed the term to access and use the data of the other contracting party in a manner that is significantly detrimental to the legitimate interests of the other contracting party, in particular when such data contain commercially sensitive data or are protected by trade_secrets or by intellectual property rights; |
| (c) | prevent the party upon whom the term has been unilaterally imposed from using the data provided 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 an adequate manner; |
| (d) | prevent the party upon whom the term has been unilaterally imposed from terminating the agreement within a reasonable period; |
| (e) | prevent the party upon whom the term has been unilaterally imposed from obtaining a copy of the data provided or generated by that party during the period of the contract or within a reasonable period after the termination thereof; |
| (f) | enable the party that unilaterally imposed the term to terminate the contract at unreasonably short notice, taking into consideration any reasonable possibility 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 so doing; |
| (g) | enable the party that unilaterally imposed the term to substantially change the price specified in the contract or any other substantive condition related to the nature, format, quality or quantity of the data to be shared, where no valid reason and no right of the other party to terminate the contract in the case of such a change is specified in the contract. |
Point (g) of the first subparagraph shall not affect terms by which the party that unilaterally imposed the term reserves the right to unilaterally change the terms of a contract of an indeterminate duration, provided that the contract specified a valid reason for such unilateral changes, that the party that unilaterally imposed the term is required to provide the other contracting party with reasonable notice of any such intended change, and that the other contracting party is free to terminate the contract at no cost in the case of a change.
6. 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 the contractual term bears the burden of proving that that term has not been unilaterally imposed. The contracting party that supplied the contested contractual term may not argue that the term is an unfair contractual term.
7. Where the unfair contractual term is severable from the remaining terms of the contract, those remaining terms shall be binding.
8. This Article does not apply to contractual terms defining the main subject matter of the contract or to the adequacy of the price, as against the data supplied in exchange.
9. The parties to a contract covered by paragraph 1 shall not exclude the application of this Article, derogate from it, or vary its effects.
CHAPTER V
MAKING DATA AVAILABLE TO PUBLIC SECTOR BODIES, THE COMMISSION, THE EUROPEAN CENTRAL BANK AND UNION BODIES ON THE BASIS OF AN EXCEPTIONAL NEED
whereas