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 1 Subject matter and scope
- 4 Article 36 Essential requirements regarding smart contracts for executing data sharing agreements
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 57
- regulation 26
- union 18
- shall 17
- requirements 16
- down 13
- essential 13
- paragraph 13
- commission 12
- laid 12
- eu / 11
- smart_contracts 10
- available 10
- thereof 10
- smart_contract 10
- this 9
- european 9
- access 8
- does 8
- chapter 8
- implementing 7
- ensure 7
- which 7
- such 7
- referred 7
- sharing 7
- applies 7
- article 7
- agreement 6
- rights 6
- executing 6
- particular 6
- national 6
- make 6
- acts 6
- request 6
- article 6
- harmonised_standards 6
- public 6
- services 6
- trade 5
- whose 5
- accordance 5
- personal 5
- sector 5
- profession 5
- conformity 5
- protection 5
- business 5
- harmonised_standard 5
Article 1
Subject matter and scope
1. This Regulation lays down harmonised rules, inter alia, on:
| (a) | the making available of product data and related_service data to the user of the connected_product or related_service; |
| (b) | the making available of data by data holders to data recipients; |
| (c) | the making available of data by data holders to public sector bodies, the Commission, the European Central Bank and Union_bodies, where there is an exceptional need for those data for the performance of a specific task carried out in the public interest; |
| (d) | facilitating switching between data processing services; |
| (e) | introducing safeguards against unlawful third-party access to non-personal data; and |
| (f) | the development of interoperability standards for data to be accessed, transferred and used. |
2. This Regulation covers personal and non-personal data, including the following types of data, in the following contexts:
| (a) | Chapter II applies to data, with the exception of content, concerning the performance, use and environment of connected_products and related_services; |
| (b) | Chapter III applies to any private sector data that is subject to statutory data sharing obligations; |
| (c) | Chapter IV applies to any private sector data accessed and used on the basis of contract between enterprises; |
| (d) | Chapter V applies to any private sector data with a focus on non-personal data; |
| (e) | Chapter VI applies to any data and services processed by providers of data processing services; |
| (f) | Chapter VII applies to any non-personal data held in the Union by providers of data processing services. |
3. This Regulation applies to:
| (a) | manufacturers of connected_products placed on the market in the Union and providers of related_services, irrespective of the place of establishment of those manufacturers and providers; |
| (b) | users in the Union of connected_products or related_services as referred to in point (a); |
| (c) | data holders, irrespective of their place of establishment, that make data available to data recipients in the Union; |
| (d) | data recipients in the Union to whom data are made available; |
| (e) | public sector bodies, the Commission, the European Central Bank and Union_bodies that request data holders to make data available where there is an exceptional need for those data for the performance of a specific task carried out in the public interest and to the data holders that provide those data in response to such request; |
| (f) | providers of data processing services, irrespective of their place of establishment, providing such services to customers in the Union; |
| (g) | participants in data spaces and vendors of applications using smart_contracts and persons whose trade, business or profession involves the deployment of smart_contracts for others in the context of executing an agreement. |
4. Where this Regulation refers to connected_products or related_services, such references are also understood to include virtual_assistants insofar as they interact with a connected_product or related_service.
5. This Regulation is without prejudice to Union and national law on the protection of personal data, privacy and confidentiality of communications and integrity of terminal equipment, which shall apply to personal data processed in connection with the rights and obligations laid down herein, in particular Regulations (EU) 2016/679 and (EU) 2018/1725 and Directive 2002/58/EC, including the powers and competences of supervisory authorities and the rights of data subjects. Insofar as users are data subjects, the rights laid down in Chapter II of this Regulation shall complement the rights of access by data subjects and rights to data portability under Articles 15 and 20 of Regulation (EU) 2016/679. In the event of a conflict between this Regulation and Union law on the protection of personal data or privacy, or national legislation adopted in accordance with such Union law, the relevant Union or national law on the protection of personal data or privacy shall prevail.
6. This Regulation does not apply to or pre-empt voluntary arrangements for the exchange of data between private and public entities, in particular voluntary arrangements for data sharing.
This Regulation does not affect Union or national legal acts providing for the sharing of, access to and the use of data for the purpose of the prevention, investigation, detection or prosecution of criminal offences or for the execution of criminal penalties, or for customs and taxation purposes, in particular Regulations (EU) 2021/784, (EU) 2022/2065 and (EU) 2023/1543 and Directive (EU) 2023/1544, or international cooperation in that area. This Regulation does not apply to the collection or sharing of, access to or the use of data under Regulation (EU) 2015/847 and Directive (EU) 2015/849. This Regulation does not apply to areas that fall outside the scope of Union law and in any event does not affect the competences of the Member States concerning public security, defence or national security, regardless of the type of entity entrusted by the Member States to carry out tasks in relation to those competences, or their power to safeguard other essential State functions, including ensuring the territorial integrity of the State and the maintenance of law and order. This Regulation does not affect the competences of the Member States concerning customs and tax administration or the health and safety of citizens.
7. This Regulation complements the self-regulatory approach of Regulation (EU) 2018/1807 by adding generally applicable obligations on cloud switching.
8. This Regulation is without prejudice to Union and national legal acts providing for the protection of intellectual property rights, in particular Directives 2001/29/EC, 2004/48/EC and (EU) 2019/790.
9. This Regulation complements and is without prejudice to Union law which aims to promote the interests of consumers and ensure a high level of consumer protection, and to protect their health, safety and economic interests, in particular Directives 93/13/EEC, 2005/29/EC and 2011/83/EU.
10. This Regulation does not preclude the conclusion of voluntary lawful data sharing contracts, including contracts concluded on a reciprocal basis, which comply with the requirements laid down in this Regulation.
Article 36
Essential requirements regarding smart_contracts for executing data sharing agreements
1. The vendor of an application using smart_contracts or, in the absence thereof, the person whose trade, business or profession involves the deployment of smart_contracts for others in the context of executing an agreement or part of it, to make data available shall ensure that those smart_contracts comply with the following essential requirements of:
| (a) | robustness and access control, to ensure that the smart_contract has been designed to offer access control mechanisms and a very high degree of robustness to avoid functional errors and to withstand manipulation by third parties; |
| (b) | safe termination and interruption, to ensure that a mechanism exists to terminate the continued execution of transactions and that the smart_contract includes internal functions which can reset or instruct the contract to stop or interrupt the operation, in particular to avoid future accidental executions; |
| (c) | data archiving and continuity, to ensure, in circumstances in which a smart_contract must be terminated or deactivated, there is a possibility to archive the transactional data, smart_contract logic and code in order to keep the record of operations performed on the data in the past (auditability); |
| (d) | access control, to ensure that a smart_contract is protected through rigorous access control mechanisms at the governance and smart_contract layers; and |
| (e) | consistency, to ensure consistency with the terms of the data sharing agreement that the smart_contract executes. |
2. The vendor of a smart_contract or, in the absence thereof, the person whose trade, business or profession involves the deployment of smart_contracts for others in the context of executing an agreement or part of it, to make data available shall perform a conformity assessment with a view to fulfilling the essential requirements laid down in paragraph 1 and, on the fulfilment of those requirements, issue an EU declaration of conformity.
3. By drawing up the EU declaration of conformity, the vendor of an application using smart_contracts or, in the absence thereof, the person whose trade, business or profession involves the deployment of smart_contracts for others in the context of executing an agreement or part of it, to make data available shall be responsible for compliance with the essential requirements laid down in paragraph 1.
4. A smart_contract that meets the harmonised_standards or the relevant parts thereof, the references of which are published in the Official Journal of the European Union, shall be presumed to be in conformity with the essential requirements laid down in paragraph 1 to the extent that those requirements are covered by such harmonised_standards or parts thereof.
5. The Commission shall, pursuant to Article 10 of Regulation (EU) No 1025/2012, request one or more European standardisation organisations to draft harmonised_standards that satisfy the essential requirements laid down in paragraph 1 of this Article.
6. The Commission may, by means of implementing acts, adopt common_specifications covering any or all of the essential requirements laid down in paragraph 1 where the following conditions have been fulfilled:
| (a) | the Commission has requested, pursuant to Article 10(1) of Regulation (EU) No 1025/2012, one or more European standardisation organisations to draft a harmonised_standard that satisfies the essential requirements laid down in paragraph 1 of this Article and:
|
| (b) | no reference to harmonised_standards covering the relevant essential requirements laid down in paragraph 1 of this Article is published in the Official Journal of the European Union in accordance with Regulation (EU) No 1025/2012 and no such reference is expected to be published within a reasonable period. |
Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 46(2).
7. Before preparing a draft implementing act referred to in paragraph 6 of this Article, the Commission shall inform the committee referred to in Article 22 of Regulation (EU) No 1025/2012 that it considers that the conditions in paragraph 6 of this Article have been fulfilled.
8. When preparing the draft implementing act referred to in paragraph 6, the Commission shall take into account the advice of the EDIB and views of other relevant bodies or expert groups and shall duly consult all relevant stakeholders.
9. The vendor of a smart_contract or, in the absence thereof, the person whose trade, business or profession involves the deployment of smart_contracts for others in the context of executing an agreement or part of it, to make data available that meet the common_specifications established by implementing acts referred to in paragraph 6 or parts thereof shall be presumed to be in conformity with the essential requirements laid down in paragraph 1 to the extent that those requirements are covered by such common_specifications or parts thereof.
10. Where a harmonised_standard is adopted by a European standardisation organisation and proposed to the Commission for the purpose of publishing its reference in the Official Journal of the European Union, the Commission shall assess the harmonised_standard in accordance with Regulation (EU) No 1025/2012. Where the reference of a harmonised_standard is published in the Official Journal of the European Union, the Commission shall repeal the implementing acts referred to in paragraph 6 of this Article, or parts thereof which cover the same essential requirements as those covered by that harmonised_standard.
11. When a Member State considers that a common specification does not entirely satisfy the essential requirements laid down in paragraph 1, it shall inform the Commission thereof by submitting a detailed explanation. The Commission shall assess that detailed explanation and may, if appropriate, amend the implementing act establishing the common specification in question.
CHAPTER IX
IMPLEMENTATION AND ENFORCEMENT
whereas