keyboard_tab Data Act 2023/2854 EN
BG CS DA DE EL EN ES ET FI FR GA HR HU IT LV LT MT NL PL PT RO SK SL SV print pdf
- 2 Article 22 Mutual assistance and cross-border cooperation
- 1 Article 25 Contractual terms concerning switching
- 1 Article 32 International governmental access and transfer
- 2 Article 37 Competent authorities and data coordinators
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
- data 68
- shall 61
- competent 33
- regulation 29
- services 28
- authority 27
- authorities 25
- request 22
- processing 21
- union 21
- paragraph 21
- relevant 20
- member 19
- provider 18
- period 17
- customer 17
- such 16
- national 14
- which 14
- state 14
- legal 14
- article 13
- switching 13
- decision 13
- referred 13
- entity 12
- within 12
- under 12
- application 12
- accordance 11
- commission 11
- from 10
- third-country 10
- contract 10
- scope 9
- applicable 9
- access 9
- falling 9
- transfer 9
- provided 9
- including 9
- states 8
- ensure 8
- enforcement 8
- process 7
- body 7
- upon 7
- addressee 7
- responsible 7
- competence 7
Article 22
Mutual assistance and cross-border cooperation
1. Public sector bodies, the Commission, the European Central Bank and Union_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 designated pursuant to Article 37 in that Member State of that intention. This requirement shall also apply to requests by the Commission, the European Central Bank and Union_bodies. The request shall be examined by the competent authority of the Member State where the data holder is established.
4. After having examined the request in light of the requirements laid down in Article 17, the relevant competent authority shall, without undue delay, take one of the following actions:
| (a) | transmit the request to the data holder and, if applicable, advise the requesting public_sector_body, the Commission, the European Central Bank or the Union 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; |
| (b) | reject the request on duly substantiated grounds in accordance with this Chapter. |
The requesting public_sector_body, the Commission, the European Central Bank and the Union body shall take into account the advice of and the grounds provided by the relevant competent authority pursuant to the first subparagraph before taking any further action such as resubmitting the request, if applicable.
CHAPTER VI
SWITCHING BETWEEN DATA PROCESSING SERVICES
Article 25
Contractual terms concerning switching
1. The rights of the customer and the obligations of the provider of data processing services in relation to switching between providers of such services or, where applicable, to an on-premises_ICT_infrastructure shall be clearly set out in a written contract. The provider of data processing services shall make that contract available to the customer prior to signing the contract in a way that allows the customer to store and reproduce the contract.
2. Without prejudice to Directive (EU) 2019/770, the contract referred to in paragraph 1 of this Article shall include at least the following:
| (a) | clauses allowing the customer, upon request, to switch to a data processing service offered by a different provider of data processing services or to port all exportable data and digital_assets to an on-premises_ICT_infrastructure, without undue delay and in any event not after the mandatory maximum transitional period of 30 calendar days, to be initiated after the maximum notice period referred to in point (d), during which the service contract remains applicable and during which the provider of data processing services shall:
|
| (b) | an obligation of the provider of data processing services to support the customer’s exit strategy relevant to the contracted services, including by providing all relevant information; |
| (c) | a clause specifying that the contract shall be considered to be terminated and the customer shall be notified of the termination, in one of the following cases:
|
| (d) | a maximum notice period for initiation of the switching process, which shall not exceed two months; |
| (e) | an exhaustive specification of all categories of data and digital_assets that can be ported during the switching process, including, at a minimum, all exportable data; |
| (f) | an exhaustive specification of categories of data specific to the internal functioning of the provider’s data processing service that are to be exempted from the exportable data under point (e) of this paragraph where a risk of breach of trade_secrets of the provider exists, provided that such exemptions do not impede or delay the switching process provided for in Article 23; |
| (g) | a minimum period for data retrieval of at least 30 calendar days, starting after the termination of the transitional period that was agreed between the customer and the provider of data processing services, in accordance with point (a) of this paragraph and paragraph 4; |
| (h) | a clause guaranteeing full erasure of all exportable data and digital_assets generated directly by the customer, or relating to the customer directly, after the expiry of the retrieval period referred to in point (g) or after the expiry of an alternative agreed period at a date later than the date of expiry of the retrieval period referred to in point (g), provided that the switching process has been completed successfully; |
| (i) | switching charges, that may be imposed by providers of data processing services in accordance with Article 29. |
3. The contract referred to in paragraph 1 shall include clauses providing that the customer may notify the provider of data processing services of its decision to perform one or more of the following actions upon termination of the maximum notice period referred to in paragraph 2, point (d):
| (a) | switch to a different provider of data processing services, in which case the customer shall provide the necessary details of that provider; |
| (b) | switch to an on-premises_ICT_infrastructure; |
| (c) | erase its exportable data and digital_assets. |
4. Where the mandatory maximum transitional period as provided for in paragraph 2, point (a) is technically unfeasible, the provider of data processing services shall notify the customer within 14 working days of the making of the switching request, and shall duly justify the technical unfeasibility and indicate an alternative transitional period, which shall not exceed seven months. In accordance with paragraph 1, service continuity shall be ensured throughout the alternative transitional period.
5. Without prejudice to paragraph 4, the contract referred to in paragraph 1 shall include clauses providing the customer with the right to extend the transitional period once for a period that the customer considers more appropriate for its own purposes.
Article 32
International governmental access and transfer
1. Providers of data processing services shall take all adequate technical, organisational and legal measures, including contracts, in order to prevent international and third-country governmental access and transfer of non-personal data held in the Union where such transfer or access would create a conflict with Union law or with the national law of the relevant Member State, without prejudice to paragraph 2 or 3.
2. Any decision or judgment of a third-country court or tribunal and any decision of a third-country administrative authority requiring a provider of data processing services to transfer or give access to non-personal data falling within the scope of this Regulation held in the Union shall be recognised or enforceable in any manner only 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 an international agreement as referred to in paragraph 2, where a provider of data processing services is the addressee of a decision or judgment of a third-country court or tribunal or a decision of a third-country administrative authority to transfer or give access to non-personal data falling 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 where:
| (a) | the third-country system requires the reasons and proportionality of such a decision or judgment to be set out and requires such a decision or judgment 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 third-country court or tribunal; and |
| (c) | the competent third-country court or tribunal issuing the decision or judgment or reviewing the decision of an administrative authority is empowered under the law of that third country to take duly into account the relevant legal interests of the provider of the data protected by Union law or by the national law of the relevant Member State. |
The addressee of the decision or judgment may ask the opinion of the relevant national body or authority competent for international cooperation in legal matters, in order to determine whether the conditions laid down in the first subparagraph are met, in particular when it considers that the decision may relate to trade_secrets and other commercially sensitive data as well as to content protected by intellectual property rights or the transfer may lead to re-identification. The relevant national body or authority may consult the Commission. If the addressee considers that the decision or judgment may impinge on the national security or defence interests of the Union or its Member States, it shall ask the opinion of the relevant national body or authority in order to determine whether the data requested concerns national security or defence interests of the Union or its Member States. If the addressee has not received a reply within one month, or if the opinion of such body or authority concludes that the conditions laid down in the first subparagraph are not met, the addressee may reject the request for transfer or access, to non-personal data, on those grounds.
The EDIB referred to in Article 42 shall advise and assist the Commission in developing guidelines on the assessment of whether the conditions laid down in the first subparagraph of this paragraph are met.
4. If the conditions laid down 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, on the basis of the reasonable interpretation of that request by the provider or relevant national body or authority referred to in paragraph 3, second subparagraph.
5. The provider of data processing services shall inform the customer about the existence of a request of a third-country authority to access its data before complying with that request, except 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 37
Competent authorities and data coordinators
1. Each Member State shall designate one or more competent authorities to be responsible for the application and enforcement of this Regulation (competent authorities). Member States may establish one or more new authorities or rely on existing authorities.
2. Where a Member State designates more than one competent authority, it shall designate a data coordinator from among them to facilitate cooperation between the competent authorities and to assist entities within the scope of this Regulation on all matters related to its application and enforcement. Competent authorities shall, in the exercise of the tasks and powers assigned to them under paragraph 5, cooperate with each other.
3. The 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 European Data Protection Supervisor shall be responsible for monitoring the application of this Regulation insofar as it concerns the Commission, the European Central Bank or Union_bodies. Where relevant, Article 62 of Regulation (EU) 2018/1725 shall apply mutatis mutandis.
The tasks and powers of the supervisory authorities referred to in this paragraph shall be exercised with regard to the processing of personal data.
4. Without prejudice to paragraph 1 of this Article:
| (a) | for specific sectoral data access and use issues related to the application of this Regulation, the competence of sectoral authorities shall be respected; |
| (b) | the competent authority responsible for the application and enforcement of Articles 23 to 31 and Articles 34 and 35 shall have experience in the field of data and electronic communications services. |
5. Member States shall ensure that the tasks and powers of the competent authorities are clearly defined and include:
| (a) | promoting data literacy and awareness among users and entities falling within the scope of this Regulation of the rights and obligations under this Regulation; |
| (b) | handling complaints arising from alleged infringements of this Regulation, including in relation to trade_secrets, and investigating, to the extent appropriate, the subject matter of complaints and regularly informing complainants, where relevant in accordance with national law, 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 effective, proportionate and 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 and relevant commercial developments of relevance for the making available and use of data; |
| (f) | cooperating with competent authorities of other Member States and, where relevant, with the Commission or the EDIB, to ensure the consistent and efficient application of this Regulation, including the exchange of all relevant information by electronic means, without undue delay, including regarding paragraph 10 of this Article; |
| (g) | cooperating with the relevant competent authorities responsible for the implementation of other Union or national legal acts, including with authorities competent in the field of data and electronic communication services, with the supervisory authority responsible for monitoring the application of Regulation (EU) 2016/679 or with sectoral authorities to ensure that this Regulation is enforced consistently with other Union and national law; |
| (h) | cooperating with the relevant competent authorities to ensure that Articles 23 to 31 and Articles 34 and 35 are enforced consistently with other Union law and self-regulation applicable to providers of data processing services; |
| (i) | ensuring that switching charges are withdrawn in accordance with Article 29; |
| (j) | examining the requests for data made pursuant to Chapter V. |
Where designated, the data coordinator shall facilitate the cooperation referred to in points (f), (g) and (h) of the first subparagraph and shall assist the competent authorities upon their request.
6. The data coordinator, where such competent authority has been designated, shall:
| (a) | act as the single point of contact for all issues related to the application of this Regulation; |
| (b) | ensure the online public availability of requests to make data available made by public sector bodies in the case of exceptional need under Chapter V and promote voluntary data sharing agreements between public sector bodies and data holders; |
| (c) | inform the Commission, on an annual basis, of the refusals notified under Article 4(2) and (8) and Article 5(11). |
7. Member States shall notify the Commission of the names of the competent authorities and of their tasks and powers and, where applicable, the name of the data coordinator. The Commission shall maintain a public register of those authorities.
8. When carrying out their tasks and exercising their powers in accordance with this Regulation, competent authorities shall remain impartial and free from any external influence, whether direct or indirect, and shall neither seek nor take instructions for individual cases from any other public authority or any private party.
9. Member States shall ensure that the competent authorities are provided with sufficient human and technical resources and relevant expertise to effectively carry out their tasks in accordance with this Regulation.
10. Entities falling within the scope of this Regulation shall be subject to the competence of the Member State where the entity is established. Where the entity is established in more than one Member State, it shall be considered to be under the competence of the Member State in which it has its main establishment, that is, where the entity has its head office or registered office from which the principal financial functions and operational control are exercised.
11. Any entity falling within the scope of this Regulation that makes connected_products available or offers services in the Union, and which is not established in the Union, shall designate a legal representative in one of the Member States.
12. For the purpose of ensuring compliance with this Regulation, a legal representative shall be mandated by an entity falling within the scope of this Regulation that makes connected_products available or offers services in the Union to be addressed in addition to or instead of it by competent authorities with regard to all issues related to that entity. That legal representative shall cooperate with and comprehensively demonstrate to the competent authorities, upon request, the actions taken and provisions put in place by the entity falling within the scope of this Regulation that makes connected_products available or offers services in the Union to ensure compliance with this Regulation.
13. An entity falling within the scope of this Regulation that makes connected_products available or offers services in the Union, shall be considered to be under the competence of the Member State in which its legal representative is located. The designation of a legal representative by such an entity shall be without prejudice to the liability of, and any legal action that could be initiated against, such an entity. Until such time as an entity designates a legal representative in accordance with this Article, it shall be under the competence of all Member States, where applicable, for the purposes of ensuring the application and enforcement of this Regulation. Any competent authority may exercise its competence, including by imposing effective, proportionate and dissuasive penalties, provided that the entity is not subject to enforcement proceedings under this Regulation regarding the same facts by another competent authority.
14. Competent authorities shall have the power to request from users, data holders, or data recipients, or their legal representatives, falling under the competence of their Member State all information necessary to verify compliance with this Regulation. Any request for information shall be proportionate to the performance of the underlying task and shall be reasoned.
15. Where a competent authority in one Member State requests assistance or enforcement measures from a competent authority in another Member State, it shall submit a reasoned request. A competent authority shall, upon receiving such a request, provide a response, detailing the actions that have been taken or which are intended to be taken, without undue delay.
16. Competent authorities shall respect the principles of confidentiality and of professional and commercial secrecy and shall protect personal data in accordance with Union or national law. Any information exchanged in the context of a request for assistance and provided pursuant to this Article shall be used only in respect of the matter for which it was requested.
whereas