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
- 1 Article 8 Conditions under which data holders make data available to data recipients
- 1 Article 10 Dispute settlement
- 3 Article 13 Unfair contractual terms unilaterally imposed on another enterprise
- 1 Article 25 Contractual terms concerning switching
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 77
- shall 48
- term 28
- party 27
- dispute 24
- contract 23
- period 21
- settlement 21
- contractual 20
- unilaterally 18
- body 18
- paragraph 18
- imposed 18
- services 17
- customer 16
- processing 15
- available 15
- accordance 14
- article 14
- terms 13
- been 13
- provider 12
- such 12
- referred 11
- a 11
- switching 11
- which 11
- union 11
- reasonable 10
- parties 10
- under 10
- recipient 10
- upon 10
- provided 9
- unfair 9
- obligations 9
- contracting 9
- termination 8
- from 8
- making 8
- holder 8
- process 7
- during 7
- article 7
- make 7
- request 7
- within 7
- access 7
- chapter 7
- disputes 7
Article 8
Conditions under which data holders make data available to data recipients
1. Where, in business-to-business relations, a data holder is obliged to make data available to a data recipient under Article 5 or under other applicable Union law or national legislation adopted in accordance with Union law, it shall agree with a data recipient the arrangements for making the data available and shall do so under fair, reasonable and non-discriminatory terms and conditions and in a transparent manner in accordance with this Chapter and Chapter IV.
2. A contractual term concerning access to and the use of data, or liability and remedies for the breach or termination of data-related obligations, shall not be binding if it constitutes an unfair contractual term within the meaning of Article 13 or if, to the detriment of the user, 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 regarding the arrangements for making data available between comparable categories of data recipients, including partner enterprises or linked enterprises of the data holder when making data available. Where a data recipient considers that the conditions under which data has been made available to it are discriminatory, the data holder shall without undue delay provide the data recipient, upon its reasoned request, with information showing that there has been no discrimination.
4. A data holder shall not make data available to a data recipient, including on an exclusive basis, unless requested to do so 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 with their obligations under this Regulation or other applicable Union law or national legislation adopted in accordance with Union law.
6. Unless otherwise provided for in Union law, including Article 4(6) and Article 5(9) of this Regulation, or by national legislation adopted in accordance with Union law, an obligation to make data available to a data recipient shall not oblige the disclosure of trade_secrets.
Article 10
Dispute settlement
1. Users, data holders and data recipients shall have access to a dispute settlement body, certified in accordance with paragraph 5 of this Article, to settle disputes pursuant to Article 4(3) and (9) and Article 5(12) as well as disputes relating to the fair, reasonable and non-discriminatory terms and conditions for, and transparent manner of, making data available in accordance with this Chapter and Chapter IV.
2. 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.
3. For disputes referred to a dispute settlement body pursuant to Article 4(3) and (9) and Article 5(12), where the dispute settlement body decides a dispute in favour of the user or of the data recipient, the data holder shall bear all the fees charged by the dispute settlement body and shall reimburse that user or that data recipient for any other reasonable expenses that it has incurred in relation to the dispute settlement. If the dispute settlement body decides a dispute in favour of the data holder, the user or the data recipient shall not be required to reimburse any fees or other expenses that the data holder paid or is to pay in relation to the dispute settlement, unless the dispute settlement body finds that the user or the data recipient manifestly acted in bad faith.
4. Customers and providers of data processing services shall have access to a dispute settlement body, certified in accordance with paragraph 5 of this Article, to settle disputes relating to breaches of the rights of customers and the obligations of providers of data processing services, in accordance with Articles 23 to 31.
5. The Member State where the dispute settlement body is established shall, at the request of that body, certify that body where it has demonstrated that it meets all of the following conditions:
(a) | it is impartial and independent, and it is to issue its decisions in accordance with clear, non-discriminatory and fair rules of procedure; |
(b) | it has the necessary expertise, in particular in relation to fair, reasonable and non-discriminatory terms and conditions, including compensation, and on making data available in a transparent manner, allowing the body to effectively determine those terms and conditions; |
(c) | it is easily accessible through electronic communication technology; |
(d) | it is capable of adopting its decisions in a swift, efficient and cost-effective manner in at least one official language of the Union. |
6. Member States shall notify to the Commission the dispute settlement bodies certified in accordance with paragraph 5. The Commission shall publish a list of those bodies on a dedicated website and keep it updated.
7. A dispute settlement body 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 tribunal of a Member State.
8. A dispute settlement body shall grant parties the possibility, within a reasonable period of time, to express their points of view on the matters those parties have brought before that body. In that context, each party to a dispute shall be provided with the submissions of the other party to their dispute and any statements made by experts. The parties shall be given the possibility to comment on those submissions and statements.
9. A dispute settlement body shall adopt its decision on a matter referred to it within 90 days of receipt of a request pursuant to paragraphs 1 and 4. That decision shall be in writing or on a durable medium and shall be supported by a statement of reasons.
10. Dispute settlement bodies shall draw up and make publicly available annual activity reports. Such annual reports shall include, in particular, the following general information:
(a) | an aggregation of the outcomes of disputes; |
(b) | the average time taken to resolve disputes; |
(c) | the most common reasons for disputes. |
11. In order to facilitate the exchange of information and best practices, a dispute settlement body may decide to include recommendations in the report referred to in paragraph 10 as to how problems can be avoided or resolved.
12. The decision of a dispute settlement body shall be binding on the parties only if the parties have explicitly consented to its binding nature prior to the start of the dispute settlement proceedings.
13. This Article does not affect the right of parties to seek an effective remedy before a court or tribunal of a Member State.
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
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:
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(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:
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(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.
whereas