294 Amendments of Tsvetelina PENKOVA related to 2022/0047(COD)
Amendment 89 #
Proposal for a regulation
Recital 1
Recital 1
(1) In recent years, data-driven technologies have had transformative effects on all sectors of the economy. The proliferation in products connected to the Internet of Things in particular has increased the volume and potential value of data for consumers, businesses and society. High quality and interoperable data from different domains increase competitiveness and innovation and ensure sustainable economic growth. The same dataset may potentially be used and reused for a variety of purposes and to an unlimited degree, without any loss in its quality or quantity, while respecting users’ choices and applicable legislation to protect them.
Amendment 92 #
Proposal for a regulation
Recital 2
Recital 2
(2) Barriers to data sharing prevent an optimal allocation of data to the benefit of society. These barriers include a lack of incentives for data holders to enter voluntarily into data sharing agreements, uncertainty about rights and obligations in relation to data, costs of contracting and implementing technical interfaces, the high level of fragmentation of information in data silos, poor metadata management, the absence of standards for semantic and technical interoperability, bottlenecks impeding data access, a lack of common data sharing practices and abuse of contractual imbalances with regards to data access and use.
Amendment 93 #
Proposal for a regulation
Recital 4
Recital 4
(4) In order to respond to the needs of the digital economy, protect consumers and to remove unjustified barriers to a well-functioning internal market for data, it is necessary to lay down a harmonised framework specifying who, other than the manufacturer or other data holder is entitled to access the data generated by products or related services, under which conditions and on what basis. Accordingly, Member States should not adopt or maintain additional national requirements on those matters falling within the scope of this Regulation, unless explicitly provided for in this Regulation, since this would affect the direct and uniform application of this Regulation.
Amendment 96 #
Proposal for a regulation
Recital 5
Recital 5
(5) This Regulation ensures that users of a product or related service in the Union including data subjects and consumers, can access, in a timely manner, the data generated by the use of that product or related service and that those users can use the data, including by sharing them with third parties and for the purposes of their choice. It imposes the obligation on the data holder to make data available to users and third parties nominated by the users in certain circumstances. It also ensures that data holders make data available to data recipients in the Union under fair, reasonable and non-discriminatory terms and in a transparent manner. Private law rules are key in the overall framework of data sharing. Therefore, this Regulation adapts rules of contract law and prevents the exploitation of contractual imbalances that hinder fair data access and use for users, micro, small or medium-sized enterprises within the meaning of Recommendation 2003/361/EC and for all other types of enterprises, including start- ups. This Regulation also ensures that data holders make available to public sector bodies of the Member States and to Union institutions, agencies or bodies, where there is an exceptional need, the data that are necessary for the performance of tasks carried out in the public interest. In addition, this Regulation seeks to facilitate switching between data processing services and to enhance the interoperability of data and data sharing mechanisms and services in the Union. This Regulation should not be interpreted as recognising or creating any legal basis for the data holder to hold, have access to or process data, or as conferring any new right on the data holder to use data generated by the use of a product or related service. Instead, it takes as its starting point the control that the data holder effectively enjoys, de facto or de jure, over data generated by products or related services.
Amendment 97 #
Proposal for a regulation
Recital 1
Recital 1
(1) In recent years, data-driven technologies have had transformative effects on all sectors of the economy. The proliferation in products connected to the Internet of Things in particular has increased the volume and potential value of data for consumers, businesses and society. High -quality and interoperable data from different domains increase competitiveness and innovation and ensure sustainable economic growth. The same dataset may potentially be used and reused for a variety of purposes and to an unlimited degree, without any loss in its quality or quantity, while respecting users’ choices and applicable legislation to protect them.
Amendment 99 #
Proposal for a regulation
Recital 2
Recital 2
(2) Barriers to data sharing prevent an optimal allocation of data to the benefit of society. These barriers include a lack of incentives for data holders to enter voluntarily into data sharing agreements, uncertainty about rights and obligations in relation to data, costs of contracting and implementing technical interfaces, the high level of fragmentation of information in data silos, poor metadata management, the absence of standards for semantic and technical interoperability, bottlenecks impeding data access, a lack of common data sharing practices and abuse of contractual imbalances with regards to data access and use.
Amendment 103 #
Proposal for a regulation
Recital 4
Recital 4
(4) In order to respond to the needs of the digital economycontribute to the digital transition of the Union, a comprehensive harmonisation at Union level is needed to ensure fairness in the allocation of value from data among all actors in the data economy as well asto avoid fragmentation resulting from national legislation, and therefore to create trust in the data sharing environment. Moreover, to foster access to and use of data. and to remove barriers to a well-functioning internal market for data, it is necessary to lay down a harmonised framework specifying who, other than the manufacturer or other data holder is entitled to access the data generated by products or related services, under which conditions and on what basis. Accordingly, Member States should not adopt or maintain additional national requirements on those matters falling within the scope of this Regulation, unless explicitly provided for in this Regulation, since this would affect the direct and uniform application of this Regulation.
Amendment 105 #
Proposal for a regulation
Recital 4
Recital 4
(4) In order to respond to the needs of the digital economy, protect consumers and to remove unjustified barriers to a well-functioning internal market for data, it is necessary to lay down a harmonised framework specifying who, other than the manufacturer or other data holder is entitled to access the data generated by products or related services, under which conditions and on what basis. Accordingly, Member States should not adopt or maintain additional national requirements on those matters falling within the scope of this Regulation, unless explicitly provided for in this Regulation, since this would affect the direct and uniform application of this Regulation.
Amendment 106 #
Proposal for a regulation
Recital 9
Recital 9
(9) This Regulation complements and is without prejudice to Union law aiming to promote the interests of consumers and to ensure a high level of consumer protection, to protect their health, safety and economic interests, in particularcluding Directive 2005/29/EC of the European Parliament and of the Council59 , Directive 2011/83/EU of the European Parliament and of the Council60 and Directive 93/13/EEC of the European Parliament and of the Council61 . _________________ 59 Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to- consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, p. 22). 60 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council. 61 Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts. Directive (EU) 2019/2161 of the European Parliament and of the Council of 27 November 2019 amending Council Directive 93/13/EEC and Directives 98/6/EC, 2005/29/EC and 2011/83/EU of the European Parliament and of the Council as regards the better enforcement and modernisation of Union consumer protection rules.
Amendment 109 #
Proposal for a regulation
Recital 5
Recital 5
(5) This Regulation ensures that users of a product or related service in the Union including data subjects and consumers, can access, in a timely manner, the data generated by the use of that product or related service and that those users can use the data, including by sharing them with third parties and for the purposes of their choice. It imposes the obligation on the data holder to make data available to users and third parties nominated by the users in certain circumstances. It also ensures that data holders make data available to data recipients in the Union under fair, reasonable and non-discriminatory terms and in a transparent manner. Private law rules are key in the overall framework of data sharing. Therefore, this Regulation adapts rules of contract law and prevents the exploitation of contractual imbalances that hinder fair data access and use for users, micro, small or medium-sized enterprises within the meaning of Recommendation 2003/361/EC and for all other types of enterprises, including start- ups. This Regulation also ensures that data holders make available to public sector bodies of the Member States and to Union institutions, agencies or bodies, where there is an exceptional need, the data that are necessary for the performance of tasks carried out in the public interest. In addition, this Regulation seeks to facilitate switching between data processing services and to enhance the interoperability of data and data sharing mechanisms and services in the Union. This Regulation should not be interpreted as recognising or creating any legal basis for the data holder to hold, have access to or process data, or as conferring any new right on the data holder to use data generated by the use of a product or related service. Instead, it takes as its starting point the control that the data holder effectively enjoys, de facto or de jure, over data generated by products or related services.
Amendment 115 #
Proposal for a regulation
Recital 20
Recital 20
(20) In case several persons or entities own a product or are party to a lease or rent agreement and benefit from access to a related service, reasonable efforts should be made in the design of the product or related service or the relevant interface so that all personseach user can have access to data they generate. Users of products that generate data typically require a user account to be set up. This allows for identification of the user by the manufacturer as well as a means to communicate to exercise and process data access requests. Manufacturers or designers of a product that is typically used by several persons should put in place the necessary mechanism that allow separate user accounts for individual persons, where relevant, or the possibility for several persons to use the same user account. Access should be granted to the user upon simple request mechanisms granting automatic execution, not requiring examination or clearance by the manufacturer or data holder. This means that data should only be made available when the user actually wants this. Where automated execution of the data access request is not possible, for instance, via a user account or accompanying mobile application provided with the product or service, the manufacturer should swiftly inform the user how the data may be accessed.
Amendment 121 #
Proposal for a regulation
Recital 23
Recital 23
(23) Before concluding a contract for the purchase, rent, or lease of a product or the provision of a related service, clear and sufficient information should be provided by the data holder to the user on how the data generated may be accessed. This obligation provides transparency over the data generated and enhances the easy access for the user. This obligation to provide information does not affect the obligation for the controller to provide information to the data subject pursuant to Article 12, 13 and 14 of Regulation 2016/679.
Amendment 125 #
Proposal for a regulation
Recital 24
Recital 24
(24) This Regulation imposes the obligation on data holders to make data available in certain circumstances. Insofar as personal data are processed, the data holder should be a controller under Regulation (EU) 2016/679. Where users are data subjects, data holders should be obliged to provide them access to their data and to make the data available to third parties of the user’s choice in accordance with this Regulation. However, this Regulation does not create a legal basis under Regulation (EU) 2016/679 for the data holder to provide access to personal data or make it available to a third party when requested by a user that is not a data subject and should not be understood as conferring any new right on the data holder to use data generated by the use of a product or related service. This applies in particular where the manufacturer is the data holder. In that case, the basis for the manufacturer to use non-personal data should be a contractual agreement between the manufacturer and the user. This agreement may be part of the sale, rent or lease agreement relating to the product. Any contractual term in the agreement stipulating that the data holder may use the data generated by the user of a product or related service should be fair and transparent to the user, including as regards the purpose for which the data holder intends to use the data. This Regulation should not prevent contractual conditions, whose effect is to exclude or limit the use of the data, or certain categories thereof, by the data holder. This Regulation should also not prevent sector-specific regulatory requirements under Union law, or national law compatible with Union law, which would exclude or limit the use of certain such data by the data holder on well- defined public policy grounds.
Amendment 128 #
Proposal for a regulation
Recital 25
Recital 25
(25) In sectors characterised by the concentration of a small number of manufacturers supplying end users, there are only limited options available to users with regard to sharing data with those manufacturers. In such circumstances, contractual agreements may be insufficient to achieve the objective of user empowerment. The data tends to remain under the control of the manufacturers or other data holders, making it difficult for users to obtain value from the data generated by the equipment they purchase, rent or lease. Consequently, there is limited potential for innovative smaller businesses to offer data-based solutions in a competitive manner and for a diverse data economy in Europe. This Regulation should therefore build on recent developments in specific sectors, such as the Code of Conduct on agricultural data sharing by contractual agreement. Sectoral legislation may be brought forward to address sector-specific needs and objectives. Furthermore, the data holder should not use any data generated by the use of the product or related service in order to derive insights about the economic situation of the user or its assets or production methods or the use in any other way that could undermine the commercial position of the user on the markets it is active on. This would, for instance, involve using knowledge about the overall performance of a business or a farm in contractual negotiations with the user on potential acquisition of the user’s products or agricultural produce to the user’s detriment, or for instance, using such information to feed in larger databases on certain markets in the aggregate (,e.g. databases on crop yields for the upcoming harvesting season) as such use could affect the user negatively in an indirect manner. The user should be given the necessary technical interface to manage permissions, preferably with granular permission options (such as “allow once” or “allow while using this app or service”), including the prominent option to withdraw permission.
Amendment 130 #
Proposal for a regulation
Recital 14
Recital 14
(14) Physical products that obtain, generate or collect, by means of their components or operating systems or embedded software, data concerning their performance, use or environment and that are able to communicate that data via a publicly available electronic communications service (often referred to as the Internet of Things) should be covered by this Regulation with the exception of prototypes. Electronic communications services include land- based telephone networks, television cable networks, satellite-based networks and near-field communication networks. Such products may include vehicles, home equipment and consumer goods, medical and health devices or agricultural and industrial machinery. The data represent the digitalisation of user actions and events and should accordingly be accessible to the user, while information derived or inferred from this data, where lawfully held, should not be considered within scope of this Regulation. Such data are potentially valuable to the user and support innovation and the development of digital and other services protecting the environment, health and the circular economy, in particular though facilitating the maintenance and repair of the products in question.This Regulation applies to products placed on the marketin the Union and thus does not apply to products in development stage such as prototypes.
Amendment 132 #
Proposal for a regulation
Recital 26
Recital 26
(26) In contracts between a data holder and a consumer as a user of a product or related service generating data, EU consumer law applies, Directive 2005/29/EC, which applies against unfair commercial practices, and Directive 93/13/EEC which applies to the terms of the contract to ensure that a consumer is not subject to unfair contractual terms. For unfair contractual terms unilaterally imposed on a micro, small or medium- sized enterprise as defined in Article 2 of the Annex to Recommendation 2003/361/EC63 , this Regulation provides that such unfair terms should not be binding on that enterprise. _________________ 63 Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium- sized enterprises
Amendment 136 #
Proposal for a regulation
Recital 15
Recital 15
(15) In contrast, certain products that are primarily designed to display or play content, or to record and transmit content, amongst others for the use by an online service should not be covered by this Regulation. Such products include, for example, personal computers, servers, tablets and smart phones, cameras, webcams, sound recording systems and text scanners. They require human input to produce various forms of content, such as text documents, sound files, video files, games, digital maps.
Amendment 139 #
Proposal for a regulation
Recital 33
Recital 33
(33) In order to prevent the exploitation of users, third parties to whom data has been made available upon request of the user should only process the data for the purposes agreed with the user and share it with another third party only if, as clearly unequivocally informed to the user in timely manner, this is necessary to provide the service requested by the user.
Amendment 140 #
Proposal for a regulation
Recital 15 a (new)
Recital 15 a (new)
(15 a) The use and access to sensitive data generated by a product regulated by a specific sectoral rules is without prejudice to those rules.
Amendment 143 #
Proposal for a regulation
Recital 34
Recital 34
(34) In line with the data minimisation principle, the third party should only access additional information that is necessary for the provision of the service requested by the user. Having received access to data, the third party should process it exclusively for the purposes agreed with the user, without interference from the data holder. It should be as easy for the user to refuse or discontinue access by the third party to the data as it is for the user to authorise access. TData holder or the third party should not make the exercise of the rights or choices of users unduly difficult including by offering choices to users in a non-neutral manner, or coerce, deceive or manipulate the user in any way, by subverting or impairing the autonomy, decision-making or free choices of the user, including by means of a digital interface with the useror a part thereof, including its structure, design, function or manner of operation. iIn this context, the data holders and third parties should not rely on so-called dark patterns in designing their digital interfaces. Dark patterns are design techniques that push or deceive consumers into decisions that have negative consequences for them. These manipulative techniques can be used to persuade users, particularly vulnerable consumers, to engage in unwanted behaviours, and to deceive users by nudging them into decisions on data disclosure transactions or to unreasonably bias the decision-making of the users of the service, in a way that subverts and impairs their autonomy, decision-making and free choice. Common and legitimate commercial practices that are in compliance with Union law should not in themselves be regarded as constituting dark patterns. TData holders and third parties should comply with their obligations under relevant Union law, in particularcluding the requirements set out in Directive 2005/29/EC, Directive 2011/83/EU, Directive 2000/31/EC and Directive 98/6/EC.
Amendment 148 #
(17) Data generated by the use of a product or related service include data recorded intentionally by the user. Such data include also data generated as a by- product of the user’s action, such as diagnostics data, and without any action by the user, such as when the product is in ‘standby mode’, and data recorded during periods when the product is switched off. Such data should include data in the form and format in which they are generated by the product, but not pertain to data resulting from any softwaincluding data pre -process that calculates derivative data from such data as such software process may be subject to intellectual property rights.ed using the product’s own computing capacity
Amendment 149 #
Proposal for a regulation
Recital 37
Recital 37
Amendment 152 #
Proposal for a regulation
Recital 41
Recital 41
(41) In order to compensate for the lack of information on the conditions of different contracts, which makes it difficult for the data recipient to assess if the terms for making the data available are non- discriminatory, it should be on the data holder to demonstrate that a contractual term is not discriminatory. It is not unlawful discrimination, where a data holder uses different contractual terms for making data available or different compensation, if those differences are justified by objective reasons. These obligations are without prejudice to Regulation (EU) 2016/679.
Amendment 155 #
Proposal for a regulation
Recital 42
Recital 42
(42) In order to incentivise the continued investment in generating valuable data, including investments in relevant technical tools, this Regulation contains the principle that the data holder may request reasonable compensation when legally obliged to make data available to the data recipient, in business-to-business relations. These provisions should not be understood as paying for the data itself, but in the case of micro, small or medium-sized enterprises, for the costs incurred and investment required for making the data available.
Amendment 158 #
Proposal for a regulation
Recital 18
Recital 18
(18) The user of a product should be understood as the legal or natural person, such as a business or, consumer or public sector body , which has purchased, rented or leased the product. Depending on the legal title under which he uses it, such a user bears the risks and enjoys the benefits of using the connected product and should enjoy also the access to the data it generates. The user should therefore be entitled to derive benefit from data generated by that product and any related service.
Amendment 158 #
Proposal for a regulation
Recital 43
Recital 43
(43) In duly justified cases, including the need to safeguard consumer participation and competition or to promote innovation in certain markets, Union law or national legislation implementing Union law may impose regulated compensation for making available specific data types.
Amendment 162 #
Proposal for a regulation
Recital 48
Recital 48
(48) Ensuring access to alternative ways of resolving domestic and cross-border disputes that arise in connection with making data available should benefit data holders and data recipients and therefore strengthen trust in data sharing. In cases where parties cannot agree on fair, reasonable and non-discriminatory terms of making data available, dispute settlement bodies should offer a simple, fast and low- cost solution to the parties. This process cannot undermine the exercise of the rights of users and in case users are affected by a dispute between data holders and data recipients or third parties, users should be effectively and swiftly compensated.
Amendment 165 #
Proposal for a regulation
Recital 52
Recital 52
(52) Rules on contractual terms should take into account the principle of contractual freedom as an essential concept in business-to-business relationships. Therefore, not all contractual terms should be subject to an unfairness test, but only to those terms that are unilaterally imposed on micro, small and medium-sized enterprises. This concerns ‘take-it-or- leave-it’ situations where one party supplies a certain contractual term and the micro, small or medium-sized enterprise cannot influence the content of that term despite an attempt to negotiate it. A contractual term that is simply provided by one party and accepted by the micro, small or medium-sized enterprise or a term that is negotiated and subsequently agreed in an amended way between contracting parties should not be considered as unilaterally imposed. All contractual agreements shall be in line with Fair, Reasonable and Non- Discriminatory (FRAND) principles
Amendment 169 #
Proposal for a regulation
Recital 20
Recital 20
(20) In case several persons or entities own a product or are party to a lease or rent agreement and benefit from access to a related service, reasonable efforts should be made in the design of the product or related service or the relevant interface so that all personseach user can have access to data they generate. Users of products that generate data typically require a user account to be set up. This allows for identification of the user by the manufacturer as well as a means to communicate to exercise and process data access requests. Manufacturers or designers of a product that is typically used by several persons should put in place the necessary mechanism that allow separate user accounts for individual persons, where relevant, or the possibility for several persons to use the same user account. Access should be granted to the user upon simple request mechanisms granting automatic execution, not requiring examination or clearance by the manufacturer or data holder. This means that data should only be made available when the user actually wants this. Where automated execution of the data access request is not possible, for instance, via a user account or accompanying mobile application provided with the product or service, the manufacturer should swiftly inform the user how the data may be accessed.
Amendment 170 #
Proposal for a regulation
Recital 21
Recital 21
(21) Products may be designed to make certain data directly available from an on- device data storage or from a remote server to which the data are communicated. Where on-device access is technically supported, the manufacturer shall make this means of access also available to third-party service providers or the user. Access to the on-device data storage may be enabled via cable-based or wireless local area networks connected to a publicly available electronic communications service or a mobile network. The server may be the manufacturer’s own local server capacity or that of a third party or a cloud service provider who functions as data holder. TheyProducts may be designed to permit the user or a third party to process the data on the product or on a computing instance of the manufacturer or in an environment chosen by the user or the authorised. Where either option is available, the user or third party shall choose their preferred method.
Amendment 177 #
Proposal for a regulation
Recital 69 a (new)
Recital 69 a (new)
(69a) Unnecessarily high “data egress fees”, or data transfer costs have the potential to restrict competition and cause lock-in effects for the customers of data processing services, by reducing incentives to choose a different or additional service provider. Therefore, the gradual withdrawal of the charges associated with switching data processing services shall specifically include withdrawing any “egress fees” charged by the data processing service to a customer.
Amendment 181 #
Proposal for a regulation
Recital 23
Recital 23
(23) Before concluding a contract for the purchase, rent, or lease of a product or the provision of a related service, clear and sufficient information should be provided by the data holder to the user on how the data generated may be accessed. This obligation provides transparency over the data generated and enhances the easy access for the user. This obligation to provide information does not affect the obligation for the controller to provide information to the data subject pursuant to Article 12, 13 and 14 of Regulation 2016/679.
Amendment 185 #
Proposal for a regulation
Recital 24
Recital 24
(24) This Regulation imposes the obligation on data holders to make data available in certain circumstances. Insofar as personal data are processed, the data holder should be a controller under Regulation (EU) 2016/679. Where users are data subjects, data holders should be obliged to provide them access to their data and to make the data available to third parties of the user’s choice in accordance with this Regulation. However, this Regulation does not create a legal basis under Regulation (EU) 2016/679 for the data holder to provide access to personal data or make it available to a third party when requested by a user that is not a data subject and should not be understood as conferring any new right on the data holder to use data generated by the use of a product or related service. This applies in particular where the manufacturer is the data holder. In that case, the basis for the manufacturer to use non-personal data should be a contractual agreement between the manufacturer and the user. This agreement may be part of the sale, rent or lease agreement relating to the product. Any contractual term in the agreement stipulating that the data holder may use the data generated by the user of a product or related service should be fair and transparent to the user, including as regards the purpose for which the data holder intends to use the data. This Regulation should not prevent contractual conditions, whose effect is to exclude or limit the use of the data, or certain categories thereof, by the data holder. This Regulation should also not prevent sector-specific regulatory requirements under Union law, or national law compatible with Union law, which would exclude or limit the use of certain such data by the data holder on well- defined public policy grounds.
Amendment 186 #
Proposal for a regulation
Recital 72
Recital 72
(72) This Regulation aims to facilitate switching between data processing services, which encompasses all conditions and actions that are necessary for a customer to terminate a contractual agreement of a data processing service, to conclude one or multiple new contracts with different providers of data processing services, to port all its digital assets, including data, to the concerned other providers and to continue to use them in the new environment while benefitting from functional equivalence. Digital assets refer to elements in digital format for which the customer has the right of use, including data, applications, virtual machines and other manifestations of virtualisation technologies, such as containers. Functional equivalence means the maintenance of a minimum level of functionality of a service after switching, and should be deemed technically feasible whenever both the originating and the destination data processing services cover (in part or in whole) the same service type. Services can only be expected to facilitate functional equivalence for the functionalities that both the originating and destination services offer. This Regulation doesn't instate an obligation of facilitating functional equivalence for data processing services of the PaaS and/or SaaS service delivery model. Meta- data, generated by the customer’s use of a service, should also be portable pursuant to this Regulation’s provisions on switching.
Amendment 188 #
Proposal for a regulation
Recital 25
Recital 25
(25) In sectors characterised by the concentration of a small number of manufacturers supplying end users, there are only limited options available to users with regard to sharing data with those manufacturers. In such circumstances, cContractual agreements may be insufficient to achieve the objective of user empowerment. The data tends to remain under the control of the manufacturers or other data holders, making it difficult for users to obtain value from the data generated by the equipment they purchase or lease. Consequently, there is limited potential for innovative smaller businesses to offer data-based solutions in a competitive manner and for a diverse data economy in Europe. This Regulation should therefore build on recent developments in specific sectors, such as the Code of Conduct on agricultural data sharing by contractual agreement. Sectoral legislation may be brought forward to address sector-specific needs and objectives. Furthermore, the data holder should not use any data generated by the use of the product or related service in order to derive insights about the economic situation of the user or its assets or production methods or the use in any other way that could undermine the commercial position of the user on the markets it is active on. This would, for instance, involve using knowledge about the overall performance of a business or a farm in contractual negotiations with the user on potential acquisition of the user’s products or agricultural produce to the user’s detriment, or for instance, using such information to feed in larger databases on certain markets in the aggregate (,e.g. databases on crop yields for the upcoming harvesting season) as such use could affect the user negatively in an indirect manner. The user should be given the necessary technical interface to manage permissions, preferably with granular permission options (such as “allow once” or “allow while using this app or service”), including the option to withdraw permission.
Amendment 189 #
Proposal for a regulation
Recital 25
Recital 25
(25) In sectors characterised by the concentration of a small number of manufacturers supplying end users, there are only limited options available to users with regard to sharing data with those manufacturers. In such circumstances, contractual agreements may be insufficient to achieve the objective of user empowerment. The data tends to remain under the control of the manufacturers or other data holders, making it difficult for users to obtain value from the data generated by the equipment they purchase, rent or lease. Consequently, there is limited potential for innovative smaller businesses to offer data-based solutions in a competitive manner and for a diverse data economy in Europe. This Regulation should therefore build on recent developments in specific sectors, such as the Code of Conduct on agricultural data sharing by contractual agreement. Sectoral legislation may be brought forward to address sector-specific needs and objectives. Furthermore, the data holder should not use any data generated by the use of the product or related service in order to derive insights about the economic situation of the user or its assets or production methods or the use in any other way that could undermine the commercial position of the user on the markets it is active on. This would, for instance, involve using knowledge about the overall performance of a business or a farm in contractual negotiations with the user on potential acquisition of the user’s products or agricultural produce to the user’s detriment, or for instance, using such information to feed in larger databases on certain markets in the aggregate (,e.g. databases on crop yields for the upcoming harvesting season) as such use could affect the user negatively in an indirect manner. The user should be given the necessary technical interface to manage permissions, preferably with granular permission options (such as “allow once” or “allow while using this app or service”), including the prominent option to withdraw permission.
Amendment 190 #
Proposal for a regulation
Recital 25 a (new)
Recital 25 a (new)
(25 a) Data users should have the priority on benefitting from the value created by the use of the product. Data holders should ensure that non-personal they receive from the connected product are primarily used for the fulfilment of their contractual obligations to the user. This is without the prejudice of the data holders capability to use the non-personal data generated to improve the functioning of the connected product or related service, to develop new products or services or to enrich, manipulate or aggregate it with other data.
Amendment 191 #
Proposal for a regulation
Recital 26
Recital 26
(26) In contracts between a data holder and a consumer as a user of a product or related service generating data, EU consumer law applies, Directive 2005/29/EC, which applies against unfair commercial practices, and Directive 93/13/EEC which applies to the terms of the contract to ensure that a consumer is not subject to unfair contractual terms. For unfair contractual terms unilaterally imposed on a micro, small or medium- sized enterprise as defined in Article 2 of the Annex to Recommendation 2003/361/EC63 , this Regulation provides that such unfair terms should not be binding on that enterprise. _________________ 63 Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium- sized enterprises
Amendment 202 #
Proposal for a regulation
Recital 28
Recital 28
(28) The user should be free to use the data for any lawful purpose. This includes providing the data the user has received exercising the right under this Regulation to a third party offering an aftermarket service that may be in competition with a service provided by the data holder, or to instruct the data holder to do so. The request should also be valid regardless of whether the request is put forward by the user or an authorised third party acting on users behalf, such as authorised data intermediation service in the meaning of the Regulation (EU) 2022/868. The data holder should ensure that the data made available to the third party is as accurate, complete, reliable, relevant and up-to-date as the data the data holder itself may be able or entitled to access from the use of the product or related service. Any trade secrets or intellectual property rights should be respected in handling the data. It is important to preserve incentives to invest in products with functionalities based on the use of data from sensors built into that product. The aim of this Regulation should accordingly be understood as to foster the development of new, innovative products or related services, stimulate innovation on aftermarkets, but also stimulate the development of entirely novel services making use of the data, including based on data from a variety of products or related services. At the same time, it aims to avoid undermining the investment incentives for the type of product from which the data are obtained, for instance, by the use of data to develop a competing product.
Amendment 204 #
Proposal for a regulation
Recital 82
Recital 82
(82) In order to enforce their rights under this Regulation, natural and legal persons should be entitled to seek redress for the infringements of their rights under this Regulation by lodging complaints with competent authorities. Those authorities should be obliged to cooperate to ensure the complaint is appropriately handled and resolved swiftly. In order to make use of the consumer protection cooperation network mechanism and to enable representative actions, this Regulation amends the Annexes to the Regulation (EU) 2017/2394 of the European Parliament and of the Council68 and Directive (EU) 2020/1828 of the European Parliament and of the Council69 . _________________ 68 Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1). 69 Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ L 409, 4.12.2020, p. 1).
Amendment 210 #
Proposal for a regulation
Article 1 – paragraph 4 a (new)
Article 1 – paragraph 4 a (new)
Amendment 214 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) ‘data’ means any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audio-visual recording; communicated by a product or related service via a publicly available electronic communication service. This includes data that represent the digitalisation of user actions and events such as data generated by the use of a product or related service or recorded intentionally by the user.
Amendment 215 #
Proposal for a regulation
Recital 31
Recital 31
(31) Data generated by the use of a product or related service should only be made available to a third party such as authorised data intermediation service in the meaning of the Regulation (EU) 2022/868 at the request of the user. This Regulation accordingly complements the right provided under Article 20 of Regulation (EU) 2016/679. That Article provides for a right of data subjects to receive personal data concerning them in a structured, commonly used and machine- readable format, and to port those data to other controllers, where those data are processed on the basis of Article 6(1), point (a), or Article 9(2), point (a), or of a contract pursuant to Article 6(1), point (b). Data subjects also have the right to have the personal data transmitted directly from one controller to another, but only where technically feasible. Article 20 specifies that it pertains to data provided by the data subject but does not specify whether this necessitates active behaviour on the side of the data subject or whether it also applies to situations where a product or related service by its design observes the behaviour of a data subject or other information in relation to a data subject in a passive manner. The right under this Regulation complements the right to receive and port personal data under Article 20 of Regulation (EU) 2016/679 in several ways. It grants users the right to access and make available to a third party to any data generated by the use of a product or related service, irrespective of its nature as personal data, of the distinction between actively provided or passively observed data, and irrespective of the legal basis of processing. Unlike the technical obligations provided for in Article 20 of Regulation (EU) 2016/679, this Regulation mandates and ensures the technical feasibility of third party access for all types of data coming within its scope, whether personal or non-personal. This Regulation also allows direct data sharing from users to third parties. This Regulation precludes the data holder or the third party from directly or indirectly charging consumers or data subjects a fee, compensation or costs for sharing data or for accessing it. This Regulation does not directly or indirectly incentivise the commercialisation or trade of personal data It also allows the data holder to set reasonable compensation to be met by third parties, but not by the user, for any cost incurred in providing direct access to the data generated by the user’s product. If a data holder and third party are unable to agree terms for such direct access, the data subject should be in no way prevented from exercising the rights contained in Regulation (EU) 2016/679, including the right to data portability, by seeking remedies in accordance with that Regulation. It is to be understood in this context that, in accordance with Regulation (EU) 2016/679, a contractual agreement does not allow for the processing of special categories of personal data by the data holder or the third party.
Amendment 220 #
Proposal for a regulation
Recital 33
Recital 33
(33) In order to prevent the exploitation of users, third parties to whom data has been made available upon request of the user should only process the data for the purposes agreed with the user and share it with another third party only if, as clearly unequivocally informed to the user in timely manner, this is necessary to provide the service requested by the user.
Amendment 220 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
(1a) 'accessible data’ means data that the data holder can request and obtain, via a publicly available electronic communication service, in a digital, machine-readable format, from the product, onto an existing interface.
Amendment 223 #
Proposal for a regulation
Recital 34
Recital 34
(34) In line with the data minimisation principle, the third party should only access additional information that is necessary for the provision of the service requested by the user. Having received access to data, the third party should process it exclusively for the purposes agreed with the user, without interference from the data holder. It should be as easy for the user to refuse or discontinue access by the third party to the data as it is for the user to authorise access. TData holder or the third party should not make the exercise of the rights or choices of users unduly difficult including by offering choices to users in a non-neutral manner, or coerce, deceive or manipulate the user in any way, by subverting or impairing the autonomy, decision-making or free choices of the user, including by means of a digital interface with the user. in this context,or a part thereof, including its structure, design, function or manner of operation. In this context, the data holders and third parties should not rely on so-called dark patterns in designing their digital interfaces. Dark patterns are design techniques that push or deceive consumers into decisions that have negative consequences for them. These manipulative techniques can be used to persuade users, particularly vulnerable consumers, to engage in unwanted behaviours, and to deceive users by nudging them into decisions on data disclosure transactions or to unreasonably bias the decision-making of the users of the service, in a way that subverts and impairs their autonomy, decision-making and free choice. Common and legitimate commercial practices that are in compliance with Union law should not in themselves be regarded as constituting dark patterns. TData holders and third parties should comply with their obligations under relevant Union law, in particularcluding the requirements set out in Directive 2005/29/EC, Directive 2011/83/EU, Directive 2000/31/EC and Directive 98/6/EC.
Amendment 225 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 b (new)
Article 2 – paragraph 1 – point 1 b (new)
(1b) ‘personal data’ means personal data as defined in Article 4, point (1), of Regulation (EU)2016/679.
Amendment 227 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 c (new)
Article 2 – paragraph 1 – point 1 c (new)
(1c) 'non-personal data’ means data other than personal data as defined in point (1) of Article 4 of Regulation (EU) 2016/679.
Amendment 228 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 d (new)
Article 2 – paragraph 1 – point 1 d (new)
(1d) ‘consent’ means consent as defined in article 4,point (11), of Regulation (EU) 2016/679;
Amendment 229 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 e (new)
Article 2 – paragraph 1 – point 1 e (new)
(1e) 'raw data’ means data collected directly from a source and not processed in any way;
Amendment 232 #
Proposal for a regulation
Recital 37
Recital 37
Amendment 232 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4 a (new)
Article 2 – paragraph 1 – point 4 a (new)
Amendment 235 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘user’ means a natural or legal person that owns, rents or leases a product or receives a services;, or related services, or the data subject
Amendment 240 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘data holder’ means a legal or natural person who has the right or obligation, in accordance with this Regulation, applicable Union law or national legislation implementing Union law, or in the case of non-personal data and through control of the technical design of the product and related services, the ability, to make available certain data; When in possession of personal data, only a controller as defined by Article 4.7 of Regulation (EU) 2016/679 can be a ‘data holder’
Amendment 245 #
Proposal for a regulation
Recital 41
Recital 41
(41) In order to compensate for the lack of information on the conditions of different contracts, which makes it difficult for the data recipient to assess if the terms for making the data available are non- discriminatory, it should be on the data holder to demonstrate that a contractual term is not discriminatory. It is not unlawful discrimination, where a data holder uses different contractual terms for making data available or different compensation, if those differences are justified by objective reasons. These obligations are without prejudice to Regulation (EU) 2016/679.
Amendment 248 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8 a (new)
Article 2 – paragraph 1 – point 8 a (new)
Amendment 251 #
Proposal for a regulation
Recital 42
Recital 42
(42) In order to incentivise the continued investment in generating valuable data, including investments in relevant technical tools, this Regulation contains the principle that the data holder may request reasonable compensation when legally obliged to make data available to the data recipient, in business-to-business relations. These provisions should not be understood as paying for the data itself, but in the case of micro, small or medium-sized enterprises, for the costs incurred and investment required for making the data available.
Amendment 256 #
(43) In duly justified cases, including the need to safeguard consumer participation and competition or to promote innovation in certain markets, Union law or national legislation implementing Union law may impose regulated compensation for making available specific data types.
Amendment 270 #
Proposal for a regulation
Article 2 – paragraph 1 – point 20 a (new)
Article 2 – paragraph 1 – point 20 a (new)
(20a) ‘metadata’ means a structured description of the contents of the data facilitating the discovery and use of this data, as well as any other data collected for the purposes of the provision of the service, including configuration parameters, security settings, logs, and other information regarding the use of the service by the final users. As for data generated by the use of connected products, the relevant metadata means the metadata that the data holder uses for its own purpose.
Amendment 276 #
Proposal for a regulation
Recital 52
Recital 52
(52) Rules on contractual terms should take into account the principle of contractual freedom as an essential concept in business-to-business relationships. Therefore, not all contractual terms should be subject to an unfairness test, but only to those terms that are unilaterally imposed on micro, small and medium-sized enterprises. This concerns ‘take-it-or- leave-it’ situations where one party supplies a certain contractual term and the micro, small or medium-sized enterprise cannot influence the content of that term despite an attempt to negotiate it. A contractual term that is simply provided by one party and accepted by the micro, small or medium-sized enterprise or a term that is negotiated and subsequently agreed in an amended way between contracting parties should not be considered as unilaterally imposed. All contractual agreements shall be in line with Fair, Reasonable and Non- Discriminatory (FRAND) principles.
Amendment 278 #
Proposal for a regulation
Recital 56
Recital 56
(56) In situations of exceptional need, it may be necessary for public sector bodies or Union institutions, agencies or bodies to use data held by an enterprise to respond to public emergencies or in other exceptional casesPublic sector bodies are faced with several interrelated challenges spanning from pandemics and climate change to urban planning and mobility. Privately held data has a high potential to help solving these problems in the public interest. By informing decision making, providing for new scientific insights and resolving policy issues, private held data enablse more targeted interventions and improvement of public service delivery, bringing about significant savings for the public budget. This is why situations it may be necessary for public sector bodies or Union institutions, agencies or bodies to use data held by an enterprise to respond to public emergencies such as public health or climate emergencies, in other exceptional cases such as purposes of legitimate public interest explicitly provided by under Union or national law. Research-performing organisations and research-funding organisations could also be organised as public sector bodies or bodies governed by public law. To limit the burden on businesses, micro and small enterprises should be exempted from the obligation to provide public sector bodies and Union institutions, agencies or bodies data in situations of exceptional need.
Amendment 278 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Products shall be designed and manufactured, and related services shall be provided, in such a manner that data generated by their use are, by default, free of charge, safely, easily, securely and, where relevant and appropriate, directly accessible to the user in a structured, commonly used and machine readable format. This shall be done without endangering their functionality and in accordance with data security requirements as laydown by Regulation 2016/679.
Amendment 283 #
Proposal for a regulation
Recital 56 a (new)
Recital 56 a (new)
(56 a) The business-to-government data sharing should be driven by the over- arching principles outlined in the High Level Expert Group on Business-to- Government. These principles are: proportionality of the use of private-sector data, data use limitation, “do no harm”, compensation, non-discrimination, limitation mitigation, transparency and societal participation, accountability and fair and ethical data use.
Amendment 283 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1 a. Consumers shall have the right to obtain a copy of the data generated by their use of the product and related services, from the data holder without hindrance, in a structured, commonly used and machine-readable format, free of charge.
Amendment 288 #
Proposal for a regulation
Article 3 – paragraph 1 b (new)
Article 3 – paragraph 1 b (new)
1b. Products and related services shall be designed and manufactured in such a manner that data subjects, irrespective of their legal title over the product, are offered the possibility to use the products covered by this Regulation anonymously or in the least privacy-intrusive way possible, such as by anonymising the data.
Amendment 289 #
Proposal for a regulation
Recital 57
Recital 57
(57) In case of public emergencies, such as public health emergencies, emergencies resulting from environmental degradation and major natural disasters including those aggravated by climate change, as well as human-induced major disasters, such as major cybersecurity incidents, the public interest resulting from the use of the data will outweigh the interests of the data holders to dispose freely of the data they hold. In such a case, data holders should be placed under an obligation to make the data available to public sector bodies or to Union institutions, agencies or bodies upon their request. The existence of a public emergency ishould be determined according to the respective procedures in the Member States or of relevant international organisations.
Amendment 293 #
Proposal for a regulation
Article 3 – paragraph 2 – introductory part
Article 3 – paragraph 2 – introductory part
2. Before concluding a contract for the purchase, rent or lease of a product or a related service, consumers should be presented with granular, meaningful consent options for data processing, within the meaning of Article4 (11) of Regulation (EU) 2016/679, differentiating between data that is essential for the functioning of the product and a related and other types of data. In addition, at least the following information shall be provided to the user, in a clear and comprehentimely, prominent and comprehensible and easily accessible format:
Amendment 297 #
Proposal for a regulation
Article 3 – paragraph 2 – point a a (new)
Article 3 – paragraph 2 – point a a (new)
(aa) the purpose for which data would be processed
Amendment 298 #
Proposal for a regulation
Recital 58
Recital 58
(58) An exceptional need may also arise when a public sector body can demonstrate that the data are necessary either to prevent a public emergency, or to assist recovery from a public emergency, in circumstances that are reasonably proximate to the public emergency in question. Where the exceptional need is not justified by the need to respond to, prevent or assist recovery from a public emergency, the public sector body or the Union institution, agency or body should demonstrate that the lack of timely access to and the use of the data requested prevents it from effectively fulfilling a specificor exercising a task in the legitimate public interest that has been explicitly provided in lawas provided for in national law. The tasks, aimed at improving the efficient provision of public services and evidence-based public policymaking as well as gaining enforcement of existing laws or regulations, can include but should not be limited to, improving traffic and mobility, environmental sustainability, affordable housing, city planning as well as facilitating the development, production and dissemination of official statistics. Such exceptional need may also occur in other situations, for example in relation to the timely compilation of official statistics when data is not otherwise available or when the burden on statistical respondents will be considerably reduced. At the same time, the public sector body or the Union institution, agency or body should, outside the case of responding to, preventing or assisting recovery from a public emergency, demonstrate that no alternative means for obtaining the data requested exists and that the data cannot be obtained in a timely manner through the laying down of the necessary data provision obligations in new legislation. This covers situations where the existence of a reporting obligation fort the provision of the data in scope of the request exists but is in itself insufficient to guarantee the availability of data of the necessary quality, granularity, and timeliness or where the said obligation is otherwise not fit for the specific use purpose sought.
Amendment 298 #
Proposal for a regulation
Article 3 – paragraph 2 – point a b (new)
Article 3 – paragraph 2 – point a b (new)
(ab) the personal data to be processed by the product as well as the indication of the personal data which are necessary for the functioning of the product
Amendment 299 #
Proposal for a regulation
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) how the user may access those data and a copy of those data, free of charge;
Amendment 304 #
Proposal for a regulation
Article 3 – paragraph 2 – point e
Article 3 – paragraph 2 – point e
(e) whether the seller, renter or lessor is the data holder and, if not, the identity of the data holder, such as its trading name , contact details and the geographical address at which it is established;
Amendment 306 #
Proposal for a regulation
Article 3 – paragraph 2 – point f
Article 3 – paragraph 2 – point f
(f) the means of communication which enable the user to contact the data holder quickly and communicate with that data holder efficiently in a durable method;
Amendment 307 #
(g) how the user may request that the data are shared with a third-party, free of charge;
Amendment 310 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2a. The data holder shall not make the exercise of the rights or choices of users unduly difficult including by offering choices to the users in a neutral manner, or coerce, deceive or manipulate the user in any way, or subvert or impair the autonomy,decision-making or free choices of the user, including by means of a digital interface or a part thereof, including its structure, design, function or manner of operation
Amendment 311 #
Proposal for a regulation
Recital 62 a (new)
Recital 62 a (new)
(62 a) The data made available to the public sector bodies should be in a structured and commonly used format, accompanied with a relevant metadata that facilitates the use of the data with only minimal adaptations necessary to make them useable by the public sector or Union institution body.
Amendment 315 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Where data cannot be directly accessed by the user from the product or related service, the data holder shall make available to the user the data generated by itsthe use of a product or related service without undue delay, free of charge, that are accessible to the data holder, as well as the relevant metadata, without undue delay, free of charge, easily, securely, in a structured, commonly used and machine- readable format, and, where applicable, continuously and in real-time. This shall be done on the basis of a simple request through electronic means where technically feasible. The manufacturer, where technically supported, shall provide on- device access in a non-discriminatory manner. Where on-device and off-device access are available, the user or third party shall choose their preferred method.
Amendment 320 #
Proposal for a regulation
Recital 66
Recital 66
(66) When reusing data provided by data holders, public sector bodies and Union institutions, agencies or bodies should respect both existing applicable legislation and contractual obligations to which the data holder is subject. . Public administration authorities should coordinate their requests for data and pursue best efforts to ensure that businesses are obliged to supply the same data only once. Where the disclosure of trade secrets of the data holder to public sector bodies or to Union institutions, agencies or bodies is strictly necessary to fulfil the purpose for which the data has been requested, confidentiality of such disclosure should be ensured to the data holder.
Amendment 321 #
Proposal for a regulation
Article 4 – paragraph 4
Article 4 – paragraph 4
4. The user shall not use the data obtained pursuant to a request referred to in paragraph 1 to develop a product that competes with the product or related service from which the data originate.
Amendment 324 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Upon request by a user, or by a party acting on behalf of a user, the data holder shall make available the data generated by the use of a product or related service to a third party, without undue delay, free of charge to the user, of the same quality as is available to the data holder and, where applicable, continuously and in real-time. hat are accessible to the data holder, as well as the relevant metadata, to a third party, without undue delay, free of charge to the user, in an interoperable, structured, commonly used and machine- readable format, of the same quality as is available to the data holder and, where applicable, continuously and in real-time and done on the basis of secure access mechanisms. Such data shall be digitally processable and interpretable and shall at least provide basic context, metadata and time stamp.
Amendment 328 #
Proposal for a regulation
Recital 69 a (new)
Recital 69 a (new)
(69 a) Unnecessarily high “data egress fees”, or data transfer costs have the potential to restrict competition and cause lock-in effects for the customers of data processing services, by reducing incentives to choose a different or additional service provider. Therefore, the gradual withdrawal of the charges associated with switching data processing services should specifically include withdrawing any “egress fees” charged by the data processing services to a customer.
Amendment 332 #
Proposal for a regulation
Recital 72
Recital 72
(72) This Regulation aims to facilitate switching between data processing services, which encompasses all conditions and actions that are necessary for a customer to terminate a contractual agreement of a data processing service, to conclude one or multiple new contracts with different providers of data processing services, to port all its digital assets, including data, to the concerned other providers and to continue to use them in the new environment while benefitting from functional equivalence. Digital assets refer to elements in digital format for which the customer has the right of use, including data, applications, virtual machines and other manifestations of virtualisation technologies, such as containers. Functional equivalence means the maintenance of a minimum level of functionality of a service after switching, and should be deemed technically feasible whenever both the originating and the destination data processing services cover (in part or in whole) the same service type. Services can only be expected to facilitate functional equivalence for the functionalities that both the originating and destination services offer. This Regulation doesn't instate an obligation of facilitating functional equivalence for data processing services of the PaaS and/or SaaS service delivery model. Meta- data, generated by the customer’s use of a service, should also be portable pursuant to this Regulation’s provisions on switching.
Amendment 333 #
Proposal for a regulation
Article 5 – paragraph 6 a (new)
Article 5 – paragraph 6 a (new)
6a. The data holder shall not make the usability of the product or related service dependent on the user allowing it to process data not required for the functionality of the product or provision of the related service.
Amendment 338 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. A third party shall process the data made available to it pursuant to Article 5 only for the purposes, mentioned in paragraph 2a and under the conditions agreed with the user, and subject to the rights of the data subject insofar as personal data are concerned, and shall immediately delete the data when they are no longer necessary for the agreed purpose.
Amendment 339 #
Proposal for a regulation
Recital 79
Recital 79
(79) Standardisation and semantic interoperability should play a key role to provide technical solutions to ensure interoperability. In order to facilitate the conformity with the requirements for interoperability, it is necessary to provide for a presumption of conformity for interoperability solutions that meet harmonised standards or parts thereof in accordance with Regulation (EU) No 1025/2012 of the European Parliament and of the Council. These standards should be developed in open, technology neutral and inclusive way line with Chapter II of the Regulation (EU) No 1025/2012. The Commission should adopt common specifications in areas where no harmonised standards exist or where they are insufficient in order to further enhance interoperability for the common European data spaces, application programming interfaces, cloud switching as well as smart contracts. Additionally, common specifications in the different sectors could remain to be adopted, in accordance with Union or national sectoral law, based on the specific needs of those sectors. Reusable data structures and models (in form of core vocabularies), ontologies, metadata application profile, reference data in the form of core vocabulary, taxonomies, code lists, authority tables, thesauri should also be part of the technical specifications for semantic interoperability. Furthermore, the Commission should be enabled to mandate the development of harmonised standards for the interoperability of data processing services in consultation with the European Data Innovation Board as outlined in the Article 30 of the Regulation (EU) No 2022/868.
Amendment 340 #
Proposal for a regulation
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(a) make the exercise of the rights or choices of users unduly difficult including by offering choices to the users in a non- neutral manner, or coerce, deceive or manipulate the user in any way, byor subverting or impairing the autonomy, decision-making or choices of the user, including by means of a digital interface with the user or a part thereof, including its structure, design, function or manner of operation;
Amendment 345 #
Proposal for a regulation
Recital 81 a (new)
Recital 81 a (new)
(81 a) In order to further enhance coordination in thee nforcement of this Regulation, the European Data Innovation Board should foster the mutual exchange of information amongst competent authorities as well as advise and assist the Commission in matters falling under this Regulation that fall within the competences of Article 30 of Regulation (EU) 2022/868. A subgroup for stakeholder involvement referred to in Article 29(2)(c) of that Regulation should participate in the consultation on a continual basis.
Amendment 346 #
Proposal for a regulation
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
(c) make the data available it receives available to another third party, in raw, aggregated or derived form, unless this is necessary to provide the service requested by the user and after the user has explicitly been made aware of this in a clear, easily accessible and prominent way;
Amendment 348 #
Proposal for a regulation
Recital 82
Recital 82
(82) In order to enforce their rights under this Regulation, natural and legal persons should be entitled to seek redress for the infringements of their rights under this Regulation by lodging complaints with competent authorities. Those authorities should be obliged to cooperate to ensure the complaint is appropriately handled and resolved swiftly. In order to make use of the consumer protection cooperation network mechanism and to enable representative actions, this Regulation amends the Annexes to the Regulation (EU) 2017/2394 of the European Parliament and of the Council68 and Directive (EU) 2020/1828 of the European Parliament and of the Council69 . _________________ 68 Regulation (EU) 2017/2394 of the European Parliament and of the Council of 12 December 2017 on cooperation between national authorities responsible for the enforcement of consumer protection laws and repealing Regulation (EC) No 2006/2004 (OJ L 345, 27.12.2017, p. 1). 69 Directive (EU) 2020/1828 of the European Parliament and of the Council of 25 November 2020 on representative actions for the protection of the collective interests of consumers and repealing Directive 2009/22/EC (OJ L 409, 4.12.2020, p. 1).
Amendment 352 #
Proposal for a regulation
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2a. A third party should only use personal data for one of the following specific purposes: (a) the provision of aftermarket services, such as the maintenance and repair of the product or related service or the provision of an aftermarket service that may be in competition with a product or related service provided by the data holder; (b) the provision of an added value service explicitly requested by the consumer or data subject; (c) specific data intermediation services recognised in the Union or specific services provided by data altruism organisations recognised in the Union under the conditions and requirements of Chapters III and IV of Regulation (EU) 2022/868; (d) purposes of non-profit organisations in the public interest; (e) research and innovation in the public interest.
Amendment 353 #
Proposal for a regulation
Article 6 a (new)
Article 6 a (new)
Article 6a Prohibited contractual clauses for business to consumer contracts 1. Contractual terms by data holders, third parties or data recipients concerning the access to, sharing and use of data or the liability and remedies for the breach or the termination of data-related obligations shall be prohibited if their object or effect is to; (a) process personal data generated by the use of a product or service by any data subject other than the user, including use by data holders and third parties, where the data makes it possible to make inferences about private lives or would otherwise entail high risks for the rights and freedoms of the individuals concerned; (b) bundle data usage by data holders or third parties, for example for purposes both necessary for the operation of the product or the related service together with purposes which are unnecessary, such as use for marketing or development of new products; (c) unrestrictedly use personal data generated by the use of a product or related services for purposes such as direct marketing or advertising, credit scoring, to determine eligibility to health insurance or to calculate or modify insurance premiums; (d) derogate from remedies resulting from non-conformity of a product or a service caused by the trader's breaches of the Data Act.
Amendment 355 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 359 #
Proposal for a regulation
Article 1 – paragraph 1 a (new)
Article 1 – paragraph 1 a (new)
1 a. This Regulation covers personal and non-personal data, including the following types of data or in the following contexts: (a) Chapter II applies to data concerning the performance, use and environment of products and relatedservices. (b) Chapter III applies to anyprivate sector data subject to statutory data sharing obligations. (c) Chapter IV applies to any private sector data accessed and used on the basis of contractual agreements between businesses. (d) Chapter V applies to any privatesector data with a focus on non-personal data. (e) Chapter VI applies to any dataprocessed by data processing services. (f) Chapter VII applies to any non- personal data held in the Union by providers of data processing services.
Amendment 362 #
Proposal for a regulation
Article 1 – paragraph 2 – point a
Article 1 – paragraph 2 – point a
(a) manufacturers of products and suppliers of related services placed on the market in the Union and the Union based users of such products or services;
Amendment 362 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. A data holder shall not discriminate between comparable categories of data recipients, that are comparable in terms of activity, size, type of business relationship, including partner enterprises or linked enterprises, as defined in Article 3 of the Annex to Recommendation 2003/361/EC, of the data holder, when making data available. Where a data recipient considers the conditions under which data has been made available to it to be discriminatory, it shall be for the data holder to demonstrate that there has been no discrimination.
Amendment 366 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Any compensation agreed between a data holder and a data recipient for making data available shall be reasonablein business-to- business relations shall be reasonable. This Regulation precludes the data holder or the third party from directly or indirectly charging consumers or data subjects a fee, compensation or costs for sharing data or for accessing it.
Amendment 373 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Where the data recipient is a micro, small or medium enterprise, as defined in Article 2 of the Annex to Recommendation 2003/361/EC, anyAny reasonable compensation agreed shall not exceed the costs directly related to making the data available to the data recipient and which are attributable to the request. Article 8(3) shall apply accordingly. These costs include the costs necessary for data reproduction, dissemination via electronic means and storage, but not of data collection or production.
Amendment 379 #
Proposal for a regulation
Article 1 – paragraph 3
Article 1 – paragraph 3
3. Union law on the protection of personal data, privacy and confidentiality of communications and integrity of terminal equipment shall apply to personal data processed in connection with the rights and obligations laid down in this Regulation. This Regulation shall not affect the applicability of Union law on the protection of personal data, in particular Regulation (EU) 2016/679 and Directive 2002/58/EC, including the powers and competences of supervisory authorities. Insofar as the rights laid down in Chapter II of this Regulation are concerned, and where users are the data subjects of personal data subject to the rights and obligations under that Chapter, the provisions of this Regulation shall complement the right of data portability under Article 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 national law adopted in accordance with such Union law, the relevant Union or national law on the protection of personal data shall prevail. However, insofar as the processing of personal data made available to a data recipient pursuant to Article 5 of the Data Act is restricted in line with Articles 3 to 6, these provisions should be understood as taking precedence over Article 6 of Regulation (EU) 2016/679. This Regulation does not create a legal basis for the processing of personal data and no provision of this Regulation should be applied or interpreted in such a way as to diminish or limit the right to the protection of personal data or the right to privacy and confidentiality of communications.
Amendment 381 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Data holders and data recipients shall have access to dispute settlement bodies, certified in accordance with paragraph 2 of this Article, to settle disputes in relation to the determination of fair, reasonable and non-discriminatory terms for and the transparent manner of making data available in accordance with Articles 8, 9 and 913.
Amendment 385 #
Proposal for a regulation
Article 1 – paragraph 4 a (new)
Article 1 – paragraph 4 a (new)
4 a. This Regulation complements and does not affect the applicability of Union law aiming to promote the interests of consumers and to ensure a high level of consumer protection, to protect their health, safety and economic interests, including Directive 2005/29/EC of the European Parliament and of the Council, Directive2011/83/EU of the European Parliament and of the Council and Directive93/13/EEC of the European Parliament and of the Council. No provision in this Regulation should be applied or interpreted in such a way as to diminish or limit a high level of consumer protection.
Amendment 385 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
1. The data holder may apply appropriate technical protection measures, including smart contracts, to prevent unauthorised access to the data and to ensure compliance with Articles 5, 6, 9 and 10, as well as with the agreed contractual terms for making data available. Such technical protection measures shall not be used as a means to hinder the user’s right to effectively obtain a copy or provide data to third parties pursuant to Article 5 or any right of a third party under Union law or national legislation implementing Union law as referred to in Article 8(1).
Amendment 388 #
Proposal for a regulation
Article 1 – paragraph 4 a (new)
Article 1 – paragraph 4 a (new)
4 a. Dataholders shall not be obliged to provide access to data to any natural or legal person, entity or body outside the Union, unless otherwise provided by the Union law or the implementing national legislations.
Amendment 390 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1
Article 2 – paragraph 1 – point 1
(1) ‘data’ means any digital representation of acts, facts or information and any compilation of such acts, facts or information, including in the form of sound, visual or audio-visual recording; communicated by a product or related service via a publicly available electronic communication service. This includes data that represent the digitalisation of user actions and events such as data generated by the use of a product or related service or recorded intentionally by the user.
Amendment 392 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A contractual term, concerning the access to and use of data or the liability and remedies for the breach or the termination of data related obligations which has been unilaterally imposed by an enterprise on a micro, small or medium-sized enterprise as defined in Article 2 of the Annex to Recommendation 2003/361/EC shall not be binding on the latter enterprise if it is unfair.provided those enterprises do not have partner enterprises or linked enterprises as defined in Article 3 of the Annex to Recommendation 2003/361/EC which do not qualify as a micro, small or medium enterprise;
Amendment 395 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
(1 a) ‘personal data’ means personal data as defined in Article 4, point(1), of Regulation (EU) 2016/679;
Amendment 397 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 b (new)
Article 2 – paragraph 1 – point 1 b (new)
(1 b) ‘personal data’ means personal data as defined in Article 4, point (1), of Regulation (EU)2016/679;
Amendment 398 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 b (new)
Article 2 – paragraph 1 – point 1 b (new)
(1 b) 'non-personal data' means data other than personal data;
Amendment 401 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 c (new)
Article 2 – paragraph 1 – point 1 c (new)
(1 c) non-personal data’ means data other than personal data as defined in point (1) of Article 4 of Regulation (EU) 2016/679.
Amendment 401 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Upon request, a data holder shall make data, including metadata, available to a public sector body or to a Union institution, agency or body demonstrating an exceptional need to use the data requested.
Amendment 406 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 a (new)
Article 2 – paragraph 1 – point 1 a (new)
(1 a) accessible data’ means data that the data holder can request and obtain, via a publicly available electronic communication service, in a digital, machine-readable format, from the product, onto an existing interface.
Amendment 413 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 d (new)
Article 2 – paragraph 1 – point 1 d (new)
(1 d) ‘consent’ means consent as defined in article 4, point (11), of Regulation (EU) 2016/679;
Amendment 417 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2
Article 2 – paragraph 1 – point 2
(2) ‘product’ means a tangible, movable item, including where incorporated in an immovable item, that obtains, generates or collects, data concerning its use or environment, and that is able to communicate data via a publicly availablen electronic communications service and whose primary function is not the storing and, processing of datar transmission of data nor is it primarily designed to display or play content, or to record and transmit content;
Amendment 428 #
Proposal for a regulation
Article 2 – paragraph 1 – point 4 a (new)
Article 2 – paragraph 1 – point 4 a (new)
(4 a) ‘consumer’ means any natural person who, in contracts covered by this Directive, is acting forpurposes which are outside his trade, business, craft or profession;
Amendment 434 #
Proposal for a regulation
Article 2 – paragraph 1 – point 5
Article 2 – paragraph 1 – point 5
(5) ‘user’ means a natural or legal person that owns, rents or leases a product or receives a services;, or related services, or the data subject
Amendment 440 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘data holder’ means a legal or natural person who has the right or obligation, in accordance with this Regulation, applicable Union law or national legislation implementing Union law, or in the case of non-personal data and through control of the technical design of the product and related services, the ability, to make available certain data; When in possession of personal data, only a controller as defined by Article 4.7 of Regulation (EU) 2016/679 can be a ‘data holder’
Amendment 443 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6 a (new)
Article 2 – paragraph 1 – point 6 a (new)
(6 a) 'data subject' means data subject as referred to in Article 4, point (1), of Regulation (EU) 2016/679;
Amendment 446 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
1. A data holder receiving a request for access to data under this Chapter shall make the data available to the requesting public sector body or a Union institution, agency or body without undue delay, taking into account provision of time and necessary technical, organisational and legal measures.
Amendment 449 #
Proposal for a regulation
Article 2 – paragraph 1 – point 8 a (new)
Article 2 – paragraph 1 – point 8 a (new)
(8 a) ‘added value service’ means any service provided to the consumer or data subject that can be enabled or improved by access and use of data generated by the use of the product or related service, including personalised services which mean services that, based on the processing of data of the consumer or data subject, offer individualised services to the consumer or data subject such as diet plans, route planning, fitness training, electricity consumption optimisation. They do not include purposes of direct marketing or advertising, credit scoring or determining eligibility to insurances, to calculate or modify insurance premiums or the services of a data broker, even if the data broker shares data with others that provide personalised services;
Amendment 455 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10
Article 2 – paragraph 1 – point 10
(10) ‘public emergency’ means an exceptional situation such as public health emergencies, emergencies resulting from environmental degradation and major natural disasters, including those exacerbated by climate change, and major man-made disasters, such as major cybersecurity incidents, negatively affecting the population of the Union, a Member State or part of it, with a risk of serious and lasting repercussions on living conditions or economic and financial stability, or the substantial degradation of economic assets in the Union or the relevant Member State(s); and which is determined according to the respective procedures under Union or national law.
Amendment 459 #
Proposal for a regulation
Article 2 – paragraph 1 – point 10 a (new)
Article 2 – paragraph 1 – point 10 a (new)
(10 a) ‘official statistics’ means statistics within the meaning of ‘European statistics’ under Regulation (EC) No 223/2009’.
Amendment 460 #
Proposal for a regulation
Article 20 – paragraph 2 a (new)
Article 20 – paragraph 2 a (new)
2a. Where the public-sector body or the Union institution, agency or body wishes to challenge the level of compensation requested by the data holder, the matter shall be brought to the competent authority referred to in Article 31 of the Member State where the data holder is established.
Amendment 465 #
Proposal for a regulation
Article 2 – paragraph 1 – point 15
Article 2 – paragraph 1 – point 15
(15) ‘'open interoperability specificationstandards’ mean ICT technical specifications, as defined in Regulation (EU) No 1025/2012, which are performance oriented towards achieving interoperability between data processing servicesfor repeated or continuous application, publicly available for implementation and use on reasonable terms (including for a reasonable fee or free of charge), adopted through an inclusive, collaborative, consensus-based and transparent process from which materially affected and interested parties cannot be excluded;
Amendment 469 #
Proposal for a regulation
Article 2 – paragraph 1 – point 16
Article 2 – paragraph 1 – point 16
Amendment 471 #
Proposal for a regulation
Article 23 – paragraph 1 – point a
Article 23 – paragraph 1 – point a
(a) terminating, after a maximum notice period of 360 calendar days, the contractual agreement of the service;, or a mutually agreed longer notice period on a contractual basis provided that both parties are able to equally influence the contractual content.
Amendment 472 #
Proposal for a regulation
Article 2 – paragraph 1 – point 17
Article 2 – paragraph 1 – point 17
Amendment 477 #
Proposal for a regulation
Article 2 – paragraph 1 – point 20 a (new)
Article 2 – paragraph 1 – point 20 a (new)
(20 a) ‘metadata’ means a structured description of the contents of the data facilitating the discovery and use of this data, as well as any other data collected for the purposes of the provision of the service, including configuration parameters, security settings, logs, and other information regarding the use of the service by the final users. As for data generated by the use of connected products, the relevant metadata means the metadata that the data holder uses for its own purpose.
Amendment 478 #
Proposal for a regulation
Article 2 – paragraph 1 – point 20 a (new)
Article 2 – paragraph 1 – point 20 a (new)
(20 a) ‘common European data spaces’ mean purpose- or sector-specific or cross -sectoral interoperable frameworks of common standards and practices to share or jointly process data for, inter alia, development and provision of new products and services, scientific research or civil society initiatives.
Amendment 481 #
Proposal for a regulation
Article 23 – paragraph 1 – point c
Article 23 – paragraph 1 – point c
(c) porting its data, and metadata created by the customer and by the use of the originating service, and/or the customer’s applications and other digital assets to another provider of data processing services;
Amendment 483 #
Proposal for a regulation
Article 2 – paragraph 1 – point 20 b (new)
Article 2 – paragraph 1 – point 20 b (new)
(20 b) ‘data intermediation service’ means data intermediation service as referred to in Article 2, point (8), of Regulation(EU) 2022/868;
Amendment 485 #
Proposal for a regulation
Article 2 – paragraph 1 – point 20 c (new)
Article 2 – paragraph 1 – point 20 c (new)
(20 c) 'operator within data spaces' mean legal persons, such as data holders, data users, and data intermediation service providers, that facilitate or engage in data sharing within and across the common European data spaces;
Amendment 492 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Products shall be designed and manufactured, and related services shall be provided, in such a manner that data generated by their use that are accessible to the data holder are free of charge and, are, by default, easily, securely and, where relevant and appropriate, directly accessible to the user in a structured, commonly used and machine-readable format. Data shall be provided in the form in which they have been generated by the product, with only the minimal adaptations necessary to make them useable by a third party, including related metadata necessary to interpret and use the data.
Amendment 494 #
Proposal for a regulation
Article 3 – paragraph 1
Article 3 – paragraph 1
1. Products shall be designed and manufactured, and related services shall be provided, in such a manner that data generated by their use are, by default, free of charge, safely, easily, securely and, where relevant and appropriate, directly accessible to the user. in a structured, commonly used and machine readable format. This shall be done without endangering their functionality and in accordance with data security requirements as laydown by Regulation 2016/679.
Amendment 500 #
Proposal for a regulation
Article 3 – paragraph 1 b (new)
Article 3 – paragraph 1 b (new)
1 b. Products and related services shall be designed and manufactured in such a manner that data subjects, irrespective of their legal title over the product, are offered the possibility to use the products covered by this Regulation anonymously or in the least privacy-intrusive way possible, such as by anonymising the data.
Amendment 502 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1 a. Consumers shall have the right to obtain a copy of the data generated by their use of the product and related services, from the data holder without hindrance, in a structured, commonly used and machine-readable format.
Amendment 503 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1 a. Where on-device access is technically supported, the manufacturer shall make this means of access also available to third-party service providers in a non-discriminatory manner.
Amendment 504 #
Proposal for a regulation
Article 24 – paragraph 1 – point a – introductory part
Article 24 – paragraph 1 – point a – introductory part
(a) clauses allowing the customer, upon request, to switch to a data processing service offered by another provider of data processing service or to port all data, applications and digital assets generated directly or indirectly by the customer to an on-premise system, in particular the establishment of a mandatory maximum transition period of 360 calendar days, during which the data processing service provider shall:
Amendment 508 #
Proposal for a regulation
Article 24 – paragraph 1 – point a – point 1
Article 24 – paragraph 1 – point a – point 1
(1) assist and, where technically feasible, complete the switching process, including reasonably assisting a third- party entity managing the switching process on behalf of the customer;
Amendment 510 #
Proposal for a regulation
Article 3 – paragraph 2 – introductory part
Article 3 – paragraph 2 – introductory part
2. Before concluding a contract for the purchase, rent or lease of a product or a related service, consumers should be presented with granular, meaningful consent options for data processing, within the meaning of Article4 (11) of Regulation (EU) 2016/679, differentiating between data that is essential for the functioning of the product and a related and other types of data. In addition, at least the following information shall be provided to the user, in a clear and comprehentimely, prominent and comprehensible and easily accessible format:
Amendment 516 #
Proposal for a regulation
Article 3 – paragraph 2 – point a a (new)
Article 3 – paragraph 2 – point a a (new)
(a a) the categories of data transmitted to the data holder by the use of a product or a related service
Amendment 516 #
Proposal for a regulation
Article 24 – paragraph 1 – point a – point 2
Article 24 – paragraph 1 – point a – point 2
(2) ensure full continuity or sufficient continuity in compliance with the contractual arrangements related to continuity in the provision of the respective functions or services.
Amendment 520 #
Proposal for a regulation
Article 24 – paragraph 1 – point a – point 2 a (new)
Article 24 – paragraph 1 – point a – point 2 a (new)
(2 a) provide the customer and third parties authorised by the customer, at their request, access to the resources necessary to support the switching process.
Amendment 521 #
Proposal for a regulation
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) how the user may access those data delivered in a usable format and in a simple, clear and free manner for the user ;;
Amendment 522 #
Proposal for a regulation
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) how the user may access those data and a copy of those data, free of charge;
Amendment 524 #
Proposal for a regulation
Article 24 – paragraph 1 – point b
Article 24 – paragraph 1 – point b
(b) an exhaustive specification of all data and application categories exportable during the switching process, including, at minimum, all data imported by the customer at the inception of the service agreement and all data and metadata created by the customer and by the use of the service during the period the service was provided, including, but not limited to, configuration parameters, security settings, access rights and access logs to the servicewhere technically feasible, at minimum;
Amendment 528 #
Proposal for a regulation
Article 3 – paragraph 2 – point c b (new)
Article 3 – paragraph 2 – point c b (new)
(c b) (cb) The technical means to access the data, such as Software Development Kits or application programming interfaces , and their terms of use and quality of service shall be sufficiently described to enable the development of such means of access
Amendment 529 #
Proposal for a regulation
Article 3 – paragraph 2 – point c a (new)
Article 3 – paragraph 2 – point c a (new)
(c a) the data holder shall provide information on the data structures, data formats, vocabularies, classification schemes, taxonomies and code lists, where available, which shall be described in a publicly available and consistent manner.
Amendment 532 #
Proposal for a regulation
Article 24 – paragraph 1 – point b – point i (new)
Article 24 – paragraph 1 – point b – point i (new)
i) all data imported by the customer at the inception of the service agreement;
Amendment 533 #
Proposal for a regulation
Article 24 – paragraph 1 – point b – point ii (new)
Article 24 – paragraph 1 – point b – point ii (new)
ii) all data and metadata created by the customer and by the use of the service during the period the service was provided, including, but not limited to, configuration parameters, security settings, access rights and access logs to the service;
Amendment 537 #
Proposal for a regulation
Article 24 – paragraph 1 – point c
Article 24 – paragraph 1 – point c
(c) a minimum period for data retrieval of at least 360 calendar days, starting after the termination of the transition period that was agreed between the customer and the service provider, in accordance with paragraph 1, point (a) and paragraph 2.
Amendment 539 #
Proposal for a regulation
Article 24 – paragraph 1 – point c a (new)
Article 24 – paragraph 1 – point c a (new)
(c a) clear description of the different operations required for switching process and clear indication of the corresponding charges imposed on the customer;
Amendment 541 #
Proposal for a regulation
Article 3 – paragraph 2 – point e
Article 3 – paragraph 2 – point e
(e) whether the seller, renter or lessor is the data holder and, if not, the identity of the data holder, such as its trading name, contact details and the geographical address at which it is established;
Amendment 544 #
Proposal for a regulation
Article 3 – paragraph 2 – point f
Article 3 – paragraph 2 – point f
(f) the means of communication which enable the user to contact the data holder quickly and communicate with that data holder efficiently in a durable method;
Amendment 548 #
(g) how the user may request that the data are shared with a third-party, free of charge;
Amendment 552 #
Proposal for a regulation
Article 25 – paragraph 1
Article 25 – paragraph 1
1. From [date X+3yrs, the date of entry into force of this Regulation] onwards, providers of data processing services shall not impose any charges on the customer who are consumers for the switching process.
Amendment 553 #
Proposal for a regulation
Article 3 – paragraph 2 a (new)
Article 3 – paragraph 2 a (new)
2 a. The data holder shall not make the exercise of the rights or choices of users unduly difficult including by offering choices to the users in a neutral manner, or coerce, deceive or manipulate the user in any way, or subvert or impair the autonomy, decision-making or free choices of the user, including by means of a digital interface or a part thereof, including its structure, design, function or manner of operation
Amendment 558 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Where data cannot be directly accessed by the user from the product, the data holder shall make available to the user the data generated by itsthe use of a product or related service without undue delay easily, in a structured, commonly used and machine-readable format, free of charge and, where applicable, continuously and in real-time. accompanied with relevant metadata. Data shall be provided in the form in which they have been generated by the product including data generated by the use of a product, with only the minimal adaptations necessary to make them useable by a third party, including related metadata and support tools necessary to interpret and use the data in order to achieve the intended purpose- This shall be done on the basis of a simple request through electronic means where This shall be done on the basis of a simple request through electronic means where technically feasible.
Amendment 559 #
Proposal for a regulation
Article 4 – paragraph 1
Article 4 – paragraph 1
1. Where data cannot be directly accessed by the user from the product or related service, the data holder shall make available to the user the data generated by itsthe use of a product or related service without undue delay, free of charge and, where applicable, continuously and in real-time. This shall be done on the basis of a simple request through electronic means where technically feasible, that are accessible to the data holder, as well as the relevant metadata, without undue delay, free of charge, easily, securely, in a structured, commonly used and machine- readable format, and, where applicable, continuously and in real-time. This shall be done on the basis of a simple request through electronic means where technically feasible. The manufacturer, where technically supported, shall provide on- device access in a non-discriminatory manner. Where on-device and off-device access are available, the user or third party shall choose their preferred method.
Amendment 559 #
Proposal for a regulation
Article 25 – paragraph 1 a (new)
Article 25 – paragraph 1 a (new)
1 a. From [date X + 3 yrs] onwards, providers of data processing services shall not impose any charges on the customer in the context of business-to-business relations for the switching process.
Amendment 562 #
Proposal for a regulation
Article 25 – paragraph 2
Article 25 – paragraph 2
2. From [date X, the date of entry into force of the Data Act] until [date X+32yrs], providers of data processing services may impose reduced charges on the customer in business-to-business relations for the switching process.
Amendment 573 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Trade secrets shall only be disclosed provided that all specific necessary measures are taken to preserve the confidentiality of trade secrets in particular with respect to third parties. The data holder and the user can agree measures to preserve the confidentiality of the shared data, in particular in relation to third parties. Such measures shall be utilized in a limited manner and only when theshared data includes trade secrets as defined by the EU or national law. The data holder shall prove the existence of trade secrets when it invokes measures to preserve the confidentiality of the shared data.
Amendment 574 #
Proposal for a regulation
Article 25 – paragraph 4
Article 25 – paragraph 4
4. The Commission is empowered to adopt delegated acts in accordance with Article 38 to supplement this Regulation in order to introduce a monitoring mechanism for the Commission to monitor switching charges imposed by data processing service providers on the market to ensure that the withdrawal of switching charges as described in paragraph 1a of this Article will be attained in accordance with the deadline provided in the same paragraph.
Amendment 577 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
1. Providers of data processing services that concern scalable and elastic computing resources limited to infrastructural elements such as servers, networks and the virtual resources necessary for operating the infrastructure, but that do not provide access to the operating services, software and applications that are stored, otherwise processed, or deployed on those infrastructural elements, shall ensure that provide assistance and take all necessary measures in their power, including in cooperation with the data processing service provider of the destination service, to facilitate the customer, after switching to a service covering the same service type offered by a different provider of data processing services, enjoyswith the aim of achieving functional equivalence in the use of the new service.
Amendment 582 #
Proposal for a regulation
Article 4 – paragraph 3
Article 4 – paragraph 3
3. Trade secrets shall only be disclosed upon agreement of both parties provided that all specific necessary measures are taken to preserve the confidentiality of trade secrets in particular with respect to third parties. The data holder and the user can agree measures to preserve the confidentiality of the shared data, in particular in relation to third parties.
Amendment 582 #
Proposal for a regulation
Article 26 – paragraph 2
Article 26 – paragraph 2
2. For data processing services other than those covered by paragraph 1, providers of data processing services shall make open interfacescan be required by the data recipient to make open interfaces designed to facilitate switching between services of the same service type publicly available and free of charge.
Amendment 585 #
Proposal for a regulation
Article 26 – paragraph 3
Article 26 – paragraph 3
3. For data processing services other than those covered by paragraph 1, providers of data processing services shall ensure compatibility with open interoperability specifications or European standards for interoperability that are identified in accordance with Article 29(5) of this Regulation or another format mutually agreed upon by the parties.
Amendment 589 #
Proposal for a regulation
Article 4 – paragraph 4
Article 4 – paragraph 4
4. The user shall not use the data obtained pursuant to a request referred to in paragraph 1 to develop a product that competes with the product or related service from which the data originate.
Amendment 595 #
Proposal for a regulation
Article 26 – paragraph 4 a (new)
Article 26 – paragraph 4 a (new)
4 a. Providers of data processing services should not be required to make their services less secure to ensure functional equivalence nor providers of non-infrastructure services be required to meet specifications that do not support security features of their service,unless in cases where such change introduces higher security and cybersecurity standards.
Amendment 596 #
Proposal for a regulation
Article 4 – paragraph 6
Article 4 – paragraph 6
6. The data holder and the user shall only use any non-personal data generated by the use of a product or related service on the basis of a contractual agreement with the user. The data holder shall not use such data generated by the use of the product or related service to derive insights about the economic situation, assets and production methods of or the use by the user that could undermine the commercial position of the user in the markets in which the user is active.
Amendment 605 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Upon request by a user, or by a party acting on behalf of a user, the data holder shall make available the data generated by the use of a product or related service to a third party, without undue delay, free of charge to the user, of the same quality as is available to the data holder and, where applicable, continuously and in real-time. hat are accessible to the data holder, as well as the relevant metadata, to a third party, without undue delay, free of charge to the user, in an interoperable, structured, commonly used and machine- readable format, of the same quality as is available to the data holder and, where applicable, continuously and in real-time and done on the basis of secure access mechanisms. Such data shall be digitally processable and interpretable and shall at least provide basic context, metadata and time stamp.
Amendment 608 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Upon request by a user, or by a party acting on behalf of a user such as authorised data intermediation service in the meaning of the Regulation (EU) 2022/868, the data holder shall make available the data generated by the use of a product or related service to a third party, without undue delay, free of charge to the user, of the same quality as is available to the data holder, free of charge to the user via a well-formed application programming interface and, where applicable, continuously and in real- time.
Amendment 612 #
Proposal for a regulation
Article 28 – paragraph 1 – subparagraph 1 – introductory part
Article 28 – paragraph 1 – subparagraph 1 – introductory part
Amendment 614 #
Proposal for a regulation
Article 28 – paragraph 1 – subparagraph 1 – point a
Article 28 – paragraph 1 – subparagraph 1 – point a
(a) the dataset content, use restrictions, licences, data collection methodology, data quality and uncertainty shall be sufficiently described in a machine-readable format to allow the recipient to find, access and use the data;
Amendment 618 #
Proposal for a regulation
Article 28 – paragraph 1 – subparagraph 1 – point c
Article 28 – paragraph 1 – subparagraph 1 – point c
(c) the technical means to access the data, such as application programming interfaces, and their terms of use and quality of service shall be sufficiently described to enable automatic access and transmission of data between parties, including continuously or in real-time in a machine-readable format, where that is necessary for the good functioning of the product or service and is technically feasible;
Amendment 626 #
Proposal for a regulation
Article 28 – paragraph 3
Article 28 – paragraph 3
3. Operators ofwithin data spaces and data holders that meet the harmonised standards or parts thereof published by reference in the Official Journal of the European Union shall be presumed to be in conformity with the essential requirements referred to in paragraph 1 of this Article, to the extent those standards cover those requirements.
Amendment 632 #
Proposal for a regulation
Article 5 – paragraph 5
Article 5 – paragraph 5
5. The data holder shall not use any non-personal data generated by the use of the product or related service to derive insights about the economic situation, assets and production methods of or use by the third party that could undermine the commercial position of the third party on the markets in which the third party is active, unless the third party has consented to such use and has the technical possibility to withdraw that consent at any time. The data holder shall not use any data generated by the use of the product or related service to monitor the interactions between users and third parties except for objectively justified security considerations
Amendment 635 #
Proposal for a regulation
Article 29 – paragraph 1 – point b
Article 29 – paragraph 1 – point b
(b) enhance portability of data and of digital assets between different data processing services that cover the same service type;
Amendment 636 #
Proposal for a regulation
Article 5 – paragraph 6 a (new)
Article 5 – paragraph 6 a (new)
6 a. The data holder shall not make the usability of the product or related service dependent on the user allowing it to process data not required for the functionality of the product or provision of the related service.
Amendment 637 #
Proposal for a regulation
Article 29 – paragraph 1 – point c
Article 29 – paragraph 1 – point c
(c) guarantefacilitate, where technically feasible, functional equivalence between different data processing services that cover the same service type.
Amendment 640 #
Proposal for a regulation
Article 29 – paragraph 1 – point c a (new)
Article 29 – paragraph 1 – point c a (new)
Amendment 646 #
Proposal for a regulation
Article 29 – paragraph 4
Article 29 – paragraph 4
4. The Commission may, in accordance with Article 10 of Regulation (EU) No 1025/2012, request one or more European standardisation organisations to define the scope of a specific service type and to draft European standards applicable to specific service types of data processing services.
Amendment 650 #
Proposal for a regulation
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(a) make the exercise of the rights or choices of users unduly difficult including by offering choices to the end-users in a non-neutral manner, or coerce, deceive or manipulate the user in any way, by subverting or impairing the autonomy, decision-making or choices of the user, including by means of a digital interface with the user or a part thereof, including its structure, design, function or manner of operation;
Amendment 651 #
Proposal for a regulation
Article 6 – paragraph 2 – point a
Article 6 – paragraph 2 – point a
(a) make the exercise of the rights or choices of users unduly difficult including by offering choices to the users in a non- neutral manner, or coerce, deceive or manipulate the user in any way, byor subverting or impairing the autonomy, decision-making or choices of the user, including by means of a digital interface with the user or a part thereof, including its structure, design, function or manner of operation;
Amendment 653 #
Proposal for a regulation
Article 31 – paragraph 2 – point c
Article 31 – paragraph 2 – point c
(c) the national competent authority responsible for the application and enforcement of Chapter VI of this Regulation shall have, sufficient technical and human resources and expertise experience in the field of consumer protection, data and electronic communications services.
Amendment 655 #
Proposal for a regulation
Article 6 – paragraph 2 – point b
Article 6 – paragraph 2 – point b
(b) use the data it receives for the profiling of natural persons within the meaning of Article 4(4) of Regulation (EU) 2016/679, unless it is strictly necessary to provide the service requested by the user;
Amendment 657 #
Proposal for a regulation
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
(c) make the data available it receives available to another third party, in raw, aggregated or derived form, unless this is necessary to provide the service requested by the user; and after the user has explicitly been made aware of this in a clear, easily accessible and prominent way;
Amendment 661 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
1. Without prejudice to any other administrative or judicial remedy, natural and legal persons shall have the right to lodge a complaint, individually or, where relevant, collectively, with the relevant competent authority in the Member State of their habitual residence, place of work or establishment if they consider that their rights under this Regulation have been infringed.
Amendment 662 #
Proposal for a regulation
Article 32 – paragraph 3
Article 32 – paragraph 3
3. Competent authorities shall cooperate to handle and resolve complaints, including by effectively and in a timely manner, including by setting reasonable deadlines for adopting formal decisions, ensuring equality of the parties, ensuring the right to be heard from complainants and access to the file throughout the process, exchanging all relevant information by electronic means, without undue delay. This cooperation shall not affect the specific cooperation mechanism provided for by Chapters VI and VII of Regulation (EU) 2016/679.
Amendment 665 #
Proposal for a regulation
Article 32 a (new)
Article 32 a (new)
Article 32 a Representation Without prejudice to Directive (EU) 2020/1828 or to any other type of representation under national law, recipients of intermediary services shall at least have the right to mandate a body, organisation or association to exercise the rights conferred by this Regulation on their behalf, provided the body, organisation or association meets all of the following conditions: (a) it operates on a not-for-profit basis; (b) it has been properly constituted in accordance with the law of a Member State; (c) its statutory objectives include a legitimate interest in ensuring that this Regulation is complied with.
Amendment 667 #
Proposal for a regulation
Article 32 b (new)
Article 32 b (new)
Amendment 668 #
Proposal for a regulation
Article 32 c (new)
Article 32 c (new)
Article 32 c Right to an effective judicial remedy against a controller or processor 1. Without prejudice to any available administrative or non-judicial remedy, including under Directive (EU) 2020/1828 and the righto lodge a complaint with a competent authority pursuant to Article 32b,each user shall have the right to an effective judicial remedy where he or she considers that their rights under this Regulation have been infringed as a result of the non-compliance with this Regulation. 2. Proceedings against a data holder, third party or data recipient shall be brought before the courts of the Member State where the user has their habitual residence, place or work or establishment.
Amendment 669 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive, including administrative fines against enterprises of a minimum of 20 000 000 EUR or 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.
Amendment 671 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
The Commission shall develop and recommend non-binding model contractual terms on data access and use to assist parties in drafting and negotiating contracts with balanced contractual rights and obligations. Such contractual terms shall be in line with Fair, Reasonable and Non- Discriminatory (FRAND) principles.
Amendment 672 #
Proposal for a regulation
Article 6 – paragraph 2 a (new)
Article 6 – paragraph 2 a (new)
2 a. A third party should only use personal data for one of the following specific purposes: (a) the provision of aftermarket services, such as the maintenance and repair of the product or related service or the provision of an aftermarket service that may be in competition with a product or related service provided by the data holder; (b) the provision of an added value service explicitly requested by the consumer or data subject; (c) specific data intermediation services recognised in the Union or specific services provided by data altruism organisations recognised in the Union under the conditions and requirements of Chapters III and IV of Regulation (EU) 2022/868; (d) purposes of non-profit organisations in the public interest; (e) research and innovation in the public interest.
Amendment 672 #
Proposal for a regulation
Article 34 – paragraph 1 a (new)
Article 34 – paragraph 1 a (new)
The Commission shall, after consulting the European Data Protection Board, issue guidelines on the definition of products to ascertain which devices are included or excluded from the scope of this Regulation in line with the definition of product under Article 2 of this Regulation.
Amendment 675 #
Proposal for a regulation
Article 6 a (new)
Article 6 a (new)
Amendment 676 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
Amendment 678 #
Proposal for a regulation
Article 7 – paragraph 1
Article 7 – paragraph 1
1. The obligations of this Chapter related to business-to-business data sharing shall not apply to data generated by the use of products manufactured or related services provided by enterprises that qualify as micro or small enterprises, as defined in Article 2 of the Annex to Recommendation 2003/361/EC, provided those enterprises do not have partner enterprises or linked enterprises as defined in Article 3 of the Annex to Recommendation 2003/361/EC which do not qualify as a micro or small enterprise.
Amendment 689 #
Proposal for a regulation
Article 8 – paragraph 3
Article 8 – paragraph 3
3. A data holder shall not discriminate between comparable categories of data recipients, that are comparable in terms of activity, size, type of business relationship, including partner enterprises or linked enterprises, as defined in Article 3 of the Annex to Recommendation 2003/361/EC, of the data holder, when making data available. Where a data recipient considers the conditions under which data has been made available to it to be discriminatory, it shall be for the data holder to demonstrate that there has been no discrimination.
Amendment 696 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Any compensation agreed between a data holder and a data recipient for making data available shall be reasonablein business-to- business relations shall be reasonable. This Regulation precludes the data holder or the third party from directly or indirectly charging consumers or data subjects a fee, compensation or costs for sharing data or for accessing it.
Amendment 699 #
Proposal for a regulation
Article 9 – paragraph 1
Article 9 – paragraph 1
1. Any compensation agreed between a data holder and a data recipient for making data available shall be reasonable and shall not exceed the costs directly related to making the data available.
Amendment 704 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Where the data recipient is a micro, small or medium enterprise, as defined in Article 2 of the Annex to Recommendation 2003/361/EC, aAny compensation agreed shall not exceed the costs directly related to making the data available to the data recipient and which are attributable to the request. Article 8(3) shall apply accordingly.
Amendment 707 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
2. Where the data recipient is a micro, small or medium enterprise, as defined in Article 2 of the Annex to Recommendation 2003/361/EC, anyAny reasonable compensation agreed shall not exceed the costs directly related to making the data available to the data recipient and which are attributable to the request. Article 8(3) shall apply accordingly. These costs include the costs necessary for data reproduction, dissemination via electronic means and storage, but not of data collection or production.
Amendment 717 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
1. Data holders and data recipients shall have access to dispute settlement bodies, certified in accordance with paragraph 2 of this Article, to settle disputes in relation to the determination of fair, reasonable and non-discriminatory terms for and the transparent manner of making data available in accordance with Articles 8 and 9 and 13.
Amendment 724 #
Proposal for a regulation
Article 11 – paragraph 1
Article 11 – paragraph 1
1. The data holder may apply appropriate technical protection measures, including smart contracts, to prevent unauthorised access to the data and to ensure compliance with Articles 5, 6, 9 and 10, as well as with the agreed contractual terms for making data available. Such technical protection measures shall not be used as a means to hinder the user’s right to effectively obtain a copy or provide data to third parties pursuant to Article 5 or any right of a third party under Union law or national legislation implementing Union law as referred to in Article 8(1).
Amendment 738 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A contractual term, concerning the access to and use of data or the liability and remedies for the breach or the termination of data related obligations which has been unilaterally imposed by an enterprise on a micro, small or medium-sized enterprise as defined in Article 2 of the Annex to Recommendation 2003/361/EC shall not be binding on the latter enterprise if it is unfair.provided those enterprises do not have partner enterprises or linked enterprises as defined in Article 3 of the Annex to Recommendation 2003/361/EC which do not qualify as a micro, small or medium enterprise;
Amendment 740 #
Proposal for a regulation
Article 13 – paragraph 1
Article 13 – paragraph 1
1. A contractual term, concerning the access to and use of data or the liability and remedies for the breach or the termination of data related obligations which has been unilaterally imposed by an enterprise on a micro, small or medium-sized enterprise as defined in Article 2 of the Annex to Recommendation 2003/361/EC or which has been unilaterally imposed by an enterprise which is the sole source of crucial data they hold in some ecosystem shall not be binding on the latterrecipient enterprise if it is unfair.
Amendment 753 #
Proposal for a regulation
Article 13 – paragraph 8 a (new)
Article 13 – paragraph 8 a (new)
8 a. The Commission shall conduct a regular market investigation to review and, if necessary, revise the unfair contractual terms listed in paragraphs 3 and 4 of this Article.
Amendment 756 #
Proposal for a regulation
Chapter V – title
Chapter V – title
V MAKING DATA AVAILABLE TO PUBLIC SECTOR BODIES AND UNION INSTITUTIONS, AGENCIES OR BODIES BASED ON EXCEPTIONAL NEED
Amendment 758 #
Proposal for a regulation
Article 14 – title
Article 14 – title
Obligation to make data available based on exceptional need
Amendment 761 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Upon request, a data holder shall make data, including relevant metadata, available to a public sector body or to a Union institution, agency or body demonstrating an exceptional need or a legitimate public interest to use the data requested.
Amendment 764 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
1. Upon request, a data holder shall make data, including metadata, available to a public sector body or to a Union institution, agency or body demonstrating an exceptional need to use the data requested.
Amendment 769 #
Proposal for a regulation
Article 15 – title
Article 15 – title
Amendment 776 #
Proposal for a regulation
Article 15 – paragraph 1 – point a
Article 15 – paragraph 1 – point a
(a) where the data requested is necessary to respond toprevent or respond to or recover from a public emergency;
Amendment 780 #
Proposal for a regulation
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
Amendment 789 #
Proposal for a regulation
Article 15 – paragraph 1 – point c – introductory part
Article 15 – paragraph 1 – point c – introductory part
(c) where the lack of available data prevents the public sector body or Union institution, agency or body from fulfilling a specificor exercising tasks in the public interest that hasve been explicitly provided by law; and
Amendment 791 #
Proposal for a regulation
Article 15 – paragraph 1 – point c – point 1
Article 15 – paragraph 1 – point c – point 1
(1) the public sector body or Union institution, agency or body has been unable to obtain such data by alternative means, including by purchasing the data on the market at market raton reasonable prices or by relying on existing obligations to make data available, and the adoption of new legislative measures cannot ensure the timely availability of the data; or
Amendment 802 #
Proposal for a regulation
Article 16 – paragraph 1 a (new)
Article 16 – paragraph 1 a (new)
1 a. This Chapter shall be without prejudice to further specific sectoral rules pertaining to the types of data for which rules have been laid down in Union or national law.
Amendment 803 #
Proposal for a regulation
Article 16 – paragraph 2
Article 16 – paragraph 2
2. The rights from this Chapter shall not be exercised to obtain information or take decisions concerning identifiable individuals. The rights from this Chapter shall not be exercised by public sector bodies and Union institutions, agencies and bodies in order to carry out activities for the prevention, investigation, detection or prosecution of criminal or administrative offences or the execution of criminal penalties, or for customs or taxation administration. This Chapter does not affect the applicable Union and national law on the prevention, investigation, detection or prosecution of criminal or administrative offences or the execution of criminal or administrative penalties, or for customs or taxation administration.
Amendment 845 #
Proposal for a regulation
Article 17 – paragraph 2 – point d
Article 17 – paragraph 2 – point d
(d) in case of requests made pursuant to Article 15, point (a), concern, insofar as possible, non- personal data;
Amendment 849 #
Proposal for a regulation
Article 17 – paragraph 2 – point d a (new)
Article 17 – paragraph 2 – point d a (new)
(d a) in case of requests made pursuant to Article 15, point (b), concern personal data only in case the dataprocessing has a specific basis in Union or Member State law;
Amendment 864 #
Proposal for a regulation
Article 17 – paragraph 4 – subparagraph 2 a (new)
Article 17 – paragraph 4 – subparagraph 2 a (new)
The third party shall not use the data it receives from a public sector body or a Union institution, agency or body as a result of the outsourcing of technical inspections or other functions pursuant to paragraph 4, to develop a product or a service that competes with the product or service from which the accessed data originate or share the data with another third party for that purpose
Amendment 872 #
Proposal for a regulation
Article 18 – paragraph 1
Article 18 – paragraph 1
1. A data holder receiving a request for access to data under this Chapter shall make the data available to the requesting public sector body or a Union institution, agency or body without undue delay, taking into account provision of time and necessary technical, organisational and legal measures.
Amendment 887 #
Proposal for a regulation
Article 18 – paragraph 5
Article 18 – paragraph 5
5. Where compliance with the request to make data available to a public sector body or a Union institution, agency or body requires the disclosure of personal data, the data holder shall take reasonable efforts to anonymise or pseudonymise the data, insofar as the request can be fulfilled with pseudonymised data.
Amendment 891 #
Proposal for a regulation
Article 19 – paragraph 1 – introductory part
Article 19 – paragraph 1 – introductory part
1. A public sector body or a Union institution, agency or body having received data pursuant to a request made under Article 14 or statistical or research organisation receiving data pursuant to a request made under Article 21(1) shall:
Amendment 923 #
Proposal for a regulation
Article 20 – paragraph 2
Article 20 – paragraph 2
2. Where the data holder claims compensation for making data available in compliance with a request made pursuant to Article 15, points (b) or (c), such compensation shall not exceedcover the technical and organisational costs incurred to comply with the request including, where necessary, the costs of anonymisation and of technical adaptation, plus a reasonable margin. Upon request of the public sector body or the Union institution, agency or body requesting the data, the data holder shall provide information on the basis for the calculation of the costs and the reasonable margin.
Amendment 930 #
Proposal for a regulation
Article 20 – paragraph 2 a (new)
Article 20 – paragraph 2 a (new)
2 a. Where the public-sector body or the Union institution, agency or body wishes to challenge the level of compensation requested by the data holder, the matter shall be brought to the competent authority referred to in Article 31 of the Member State where the data holders is established.
Amendment 931 #
Proposal for a regulation
Article 20 – paragraph 2 a (new)
Article 20 – paragraph 2 a (new)
2 a. Where the public sector body or the Union institution, agency or body wishes to challenge the level of compensation requested by the data holder, the matter shall be brought to the competent authority referred to in Article 31 of the Member State where the data holder is established.
Amendment 934 #
Proposal for a regulation
Article 21 – paragraph 1
Article 21 – paragraph 1
1. A public sector body or a Union institution, agency or body shall be entitled to share data received under this Chapter with individuals or organisations in view of carrying out scientific research or analytics compatible with the purpose for which the data was requested, or to national statistical institutes, the members of the European System of Central Banks, and Eurostat for the compilation of official statistics.
Amendment 952 #
Proposal for a regulation
Article 22 – paragraph 4 a (new)
Article 22 – paragraph 4 a (new)
4 a. Where a public sector body intends to request data under Article 15 (b) of this Chapter from a data holder established in another Member State the request shall be evaluated in line by the competent authority of the Member State where the data holder is established.
Amendment 957 #
Proposal for a regulation
Article 23 – paragraph 1 – point a
Article 23 – paragraph 1 – point a
(a) terminating, after a maximum notice period of 360 calendar days, the contractual agreement of the service; , or a mutually agreed longer notice period on a contractual basis provided that both parties are able to equally influence the contractual content.
Amendment 959 #
Proposal for a regulation
Article 23 – paragraph 1 – point c
Article 23 – paragraph 1 – point c
(c) porting its data, and metadata created by the customer and by the use of the originating service, and/or the customer’s applications and other digital assets to another provider of data processing services;
Amendment 965 #
Proposal for a regulation
Article 24 – paragraph 1 – point a – introductory part
Article 24 – paragraph 1 – point a – introductory part
(a) clauses allowing the customer, upon request, to switch to a data processing service offered by another provider of data processing service or to port all data, applications and digital assets generated directly or indirectly by the customer to an on-premise system, in particular the establishment of a mandatory maximum transition period of 360 calendar days, during which the data processing service provider shall:
Amendment 969 #
Proposal for a regulation
Article 24 – paragraph 1 – point a – point 1
Article 24 – paragraph 1 – point a – point 1
(1) assist and, where technically feasible, complete the switching process, including reasonably assisting a third- party entity managing the switching process on behalf of the customer;
Amendment 971 #
Proposal for a regulation
Article 24 – paragraph 1 – point a – point 2
Article 24 – paragraph 1 – point a – point 2
(2) ensure full continuity or sufficient continuity in compliance with the contractual arrangements related to continuity in the provision of the respective functions or services.
Amendment 972 #
Proposal for a regulation
Article 24 – paragraph 1 – point a – point 2 a (new)
Article 24 – paragraph 1 – point a – point 2 a (new)
(2 a) provide the customer and third parties authorised by the customer, at their request, access to the resources necessary to support the switching process.
Amendment 974 #
Proposal for a regulation
Article 24 – paragraph 1 – point b
Article 24 – paragraph 1 – point b
(b) an exhaustive specification of all data and application categories exportable during the switching process, including, where technically feasible, at minimum, all data imported by the customer at the inception of the service agreement and all data and metadata created by the customer and by the use of the service during the period the service was provided, including, but not limited to, configuration parameters, security settings, access rights and access logs to the service;
Amendment 978 #
(c) a minimum period for data retrieval of at least 360 calendar days, starting after the termination of the transition period that was agreed between the customer and the service provider, in accordance with paragraph 1, point (a) and paragraph 2.
Amendment 979 #
Proposal for a regulation
Article 24 – paragraph 1 – point c a (new)
Article 24 – paragraph 1 – point c a (new)
(c a) clear description of the different operations required for switching process and clear indication of the corresponding charges imposed on the customer;
Amendment 983 #
Proposal for a regulation
Article 25 – paragraph 1
Article 25 – paragraph 1
1. From [the date X+3yrsof entry into force of this Regulation] onwards, providers of data processing services shall not impose any charges on the customer who are consumers for the switching process.
Amendment 985 #
Proposal for a regulation
Article 25 – paragraph 1 a (new)
Article 25 – paragraph 1 a (new)
1 a. From [date X + 3 yrs] onwards, providers of data processing services shall not impose any charges on the customer in the context of business-to-business relations for the switching process.
Amendment 986 #
Proposal for a regulation
Article 25 – paragraph 2
Article 25 – paragraph 2
2. From [date X, the date of entry into force of the Data Act] until [date X+32yrs], providers of data processing services may impose reduced charges on the customer in business-to-business relations for the switching process.
Amendment 989 #
Proposal for a regulation
Article 25 – paragraph 4
Article 25 – paragraph 4
4. The Commission is empowered to adopt delegated acts in accordance with Article 38 to supplement this Regulation in order to introduce a monitoring mechanism for the Commission to monitor switching charges imposed by data processing service providers on the market to ensure that the withdrawal of switching charges as described in paragraph 1a of this Article will be attained in accordance with the deadline provided in the same paragraph.
Amendment 991 #
Proposal for a regulation
Article 26 – paragraph 1
Article 26 – paragraph 1
1. Providers of data processing services that concern scalable and elastic computing resources limited to infrastructural elements such as servers, networks and the virtual resources necessary for operating the infrastructure, but that do not provide access to the operating services, software and applications that are stored, otherwise processed, or deployed on those infrastructural elements, shall ensure thatprovide assistance and take all necessary measures in their power, including in cooperation with the data processing service provider of the destination service, to facilitate the customer, after switching to a service covering the same service type offered by a different provider of data processing services, enjoyswith the aim of achieving functional equivalence in the use of the new service.
Amendment 993 #
Proposal for a regulation
Article 26 – paragraph 2
Article 26 – paragraph 2
2. For data processing services other than those covered by paragraph 1, providers of data processing services shall make open interfacescan be required by the data recipient to make open interfaces designed to facilitate switching between services of the same service type publicly available and free of charge.
Amendment 1001 #
Proposal for a regulation
Article 26 – paragraph 4 a (new)
Article 26 – paragraph 4 a (new)
4 a. Providers of data processing services should not be required to make their services less secure to ensure functional equivalence nor providers of non-infrastructure services be required to meet specifications that do not support security features of their service, unless incases where such change introduces higher security and cybersecurity standards.
Amendment 1006 #
Proposal for a regulation
Article 27 – paragraph 1
Article 27 – paragraph 1
1. Providers of data processing services shall take all reasonable technical, legal and organisational measures, including contractual arrangements, in order to prevent international transfer orand governmental access to such non-personal data held in the Union where such transfer or access would create a conflict with Union law or the national law of the relevant Member State, without prejudice to paragraph 2 or 3.
Amendment 1010 #
Proposal for a regulation
Article 27 – paragraph 3 – subparagraph 2
Article 27 – paragraph 3 – subparagraph 2
The addressee of the decision mayshall ask the opinion of the relevant competent bodies or authorities, pursuant to this Regulation, in order to determine whether these conditions are met, notably when it considers that the decision may relate to commercially sensitive data, or may impinge on national security or defence interests of the Union or its Member States.
Amendment 1011 #
Proposal for a regulation
Article 27 – paragraph 3 – subparagraph 3
Article 27 – paragraph 3 – subparagraph 3
The European Data Innovation Board established under Regulation [xxx – DGA](EU) 2022/868 shall advise and assist the Commission in developing guidelines on the assessment of whether these conditions are met.
Amendment 1017 #
Proposal for a regulation
Article 28 – paragraph 1 – subparagraph 1 – introductory part
Article 28 – paragraph 1 – subparagraph 1 – introductory part
Operators ofwithin data spaces shall comply with, the following essential requirements applicable to the services offered by the operator, to facilitate interoperability of data, data sharing mechanisms and services:
Amendment 1020 #
Proposal for a regulation
Article 28 – paragraph 1 – subparagraph 1 – introductory part
Article 28 – paragraph 1 – subparagraph 1 – introductory part
Amendment 1022 #
Proposal for a regulation
Article 28 – paragraph 1 – subparagraph 1 – point a
Article 28 – paragraph 1 – subparagraph 1 – point a
(a) the dataset content, use restrictions, licences, data collection methodology, data quality and uncertainty shall be sufficiently described in a machine-readable format to allow the recipient to find, access and use the data;
Amendment 1026 #
Proposal for a regulation
Article 28 – paragraph 1 – subparagraph 1 – point c
Article 28 – paragraph 1 – subparagraph 1 – point c
(c) the technical means to access the data, such as application programming interfaces, and their terms of use and quality of service shall be sufficiently described to enable automatic access and transmission of data between parties, including continuously or in real-time in a machine-readable format, where that is necessary for the good functioning of the product or service and is technically feasible;
Amendment 1027 #
Proposal for a regulation
Article 28 – paragraph 1 – subparagraph 1 – point d
Article 28 – paragraph 1 – subparagraph 1 – point d
(d) the means to enable the interoperability of smart contracts for data sharing within their services and activities shall be provided.
Amendment 1033 #
Proposal for a regulation
Article 28 – paragraph 2
Article 28 – paragraph 2
2. The Commission, in consultation with the European Data Innovation Board in line with the Articles 29and 30 (f)and 30(h) of the Regulation (EU)No 2022/868 is empowered to adopt delegated acts, in accordance with Article 38 to supplement this Regulation by further specifying the essential requirements referred to in paragraph 1.
Amendment 1035 #
3. Operators ofwithin data spaces and data holders that meet the harmonised standards or parts thereof published by reference in the Official Journal of the European Union shall be presumed to be in conformity with the essential requirements referred to in paragraph 1 of this Article, to the extent those standards cover those requirements.
Amendment 1037 #
Proposal for a regulation
Article 28 – paragraph 3 a (new)
Article 28 – paragraph 3 a (new)
Amendment 1041 #
Proposal for a regulation
Article 28 – paragraph 4
Article 28 – paragraph 4
4. The Commission may, in accordance with Article 10 of Regulation (EU) No 1025/2012, request one or more European standardisation organisations to draft harmonised standards that satisfy the essential requirements under paragraph 1 of this Article and are developed inan and are developed in an open, transparent, technology-neutral, and inclusive manner in accordance with the Chapter II of Regulation (EU) No 1025/2012.
Amendment 1045 #
Proposal for a regulation
Article 28 – paragraph 6
Article 28 – paragraph 6
6. The Commission, in consultation with the European Data Innovation Board in line with the Articles 29 and 30(f)and 30(h) of the Regulation (EU) 2022/868 may adopt guidelines laying down interoperability specifications for the functioning of common European data spaces, such as architectural models and technical standards implementing legal rules and arrangements between parties that foster data sharing, such as regarding rights to access and technical translation of consent or permission.
Amendment 1052 #
Proposal for a regulation
Article 29 – paragraph 1 – point b
Article 29 – paragraph 1 – point b
(b) enhance portability of data and of digital assets between different data processing services that cover the same service type;
Amendment 1054 #
Proposal for a regulation
Article 29 – paragraph 1 – point c
Article 29 – paragraph 1 – point c
(c) guarantefacilitate, where technically feasible, functional equivalence between different data processing services that cover the same service type.
Amendment 1062 #
Proposal for a regulation
Article 29 – paragraph 4
Article 29 – paragraph 4
4. The Commission may, in accordance with Article 10 of Regulation (EU) No 1025/2012, request one or more European standardisation organisations to define the scope of a specific service type and to draft European standards applicable to specific service types of data processing services.
Amendment 1063 #
Proposal for a regulation
Article 29 – paragraph 5
Article 29 – paragraph 5
5. For the purposes of Article 26(3) of this Regulation, the Commission in consultation with the European Data Innovation Board in line with the Articles 29 and 30(f) and 30(h) of Regulation (EU) 2022/868 shall be empowered to adopt delegated acts, in accordance with Article 38, to publish the reference of open interoperability specifications and European standards for the interoperability of data processing services in central Union standards repository for the interoperability of data processing services, where these satisfy the criteria specified in paragraph 1 and 2 of this Article.
Amendment 1067 #
Proposal for a regulation
Article 30 – title
Article 30 – title
30 Essential requirements regarding smart contracts for data sharing
Amendment 1069 #
Proposal for a regulation
Article 30 – paragraph 1 – point a
Article 30 – paragraph 1 – point a
(a) robustness and access control: ensure that the smart contract has been designed to offer rigorous access control mechanisms and a very high degree of robustness to avoid functional errors and to withstand manipulation by third parties;
Amendment 1072 #
Proposal for a regulation
Article 30 – paragraph 1 – point c
Article 30 – paragraph 1 – point c
Amendment 1075 #
Proposal for a regulation
Article 30 – paragraph 1 – point d
Article 30 – paragraph 1 – point d
Amendment 1082 #
Proposal for a regulation
Article 30 – paragraph 2
Article 30 – paragraph 2
Amendment 1085 #
Proposal for a regulation
Article 30 – paragraph 4
Article 30 – paragraph 4
Amendment 1087 #
Proposal for a regulation
Article 30 – paragraph 5
Article 30 – paragraph 5
Amendment 1089 #
Proposal for a regulation
Article 30 – paragraph 6
Article 30 – paragraph 6
Amendment 1095 #
Proposal for a regulation
Article 31 – paragraph 1
Article 31 – paragraph 1
1. Each Member State shall designate one or more competent authorities as responsible for the application and enforcement of this Regulation, with designated responsible competent authority coordinating the work of the competent authorities. Member States may establish one or more new authorities or rely on existing authorities.
Amendment 1102 #
Proposal for a regulation
Article 31 – paragraph 2 – point c
Article 31 – paragraph 2 – point c
(c) the national competent authority responsible for the application and enforcement of Chapter VI of this Regulation shall have, sufficient technical and human resources and expertise experience in the field of consumer protection, data and electronic communications services.
Amendment 1104 #
Proposal for a regulation
Article 31 – paragraph 2 – point c
Article 31 – paragraph 2 – point c
(c) the national competent authority responsible for the application and enforcement of Chapter VI of this Regulation shall have technical and human resources and experience in the field of data and electronic communications services.
Amendment 1105 #
Proposal for a regulation
Article 31 – paragraph 3 – introductory part
Article 31 – paragraph 3 – introductory part
3. Member States shall ensure that the respective tasks and powers of the competent authorities designated pursuant to paragraph 1 of this Article are clearly defined and shall at least include:
Amendment 1107 #
Proposal for a regulation
Article 31 – paragraph 3 – point b
Article 31 – paragraph 3 – point b
(b) handling complaints arising from alleged violations of this Regulation, and investigating, to the extent appropriate, the subject matter of the complaint and regularly and meaningfully informing the complainant of the progress and the outcome of the investigation swiftly within a reasonable period, in particular if further investigation or coordination with another competent authority is necessary;
Amendment 1110 #
Proposal for a regulation
Article 31 – paragraph 3 – point d
Article 31 – paragraph 3 – point d
(d) imposing, through administrative or juridical procedures, dissuasive financial penalties which may include periodic penalties and penalties with retroactive effect, or initiating legal proceedings for the imposition of fines;
Amendment 1111 #
Proposal for a regulation
Article 31 – paragraph 3 – point e
Article 31 – paragraph 3 – point e
(e) monitoring technological developments of relevance for the making available and use of data with a view of better enforcing this Regulation; ;
Amendment 1114 #
Proposal for a regulation
Article 31 – paragraph 3 – point f
Article 31 – paragraph 3 – point f
(f) cooperating with competent authorities of other Member States to ensure the consistent swift and effective application of this Regulation, including the exchange of all relevant information by electronic means, in a timely manner without undue delay;
Amendment 1117 #
Proposal for a regulation
Article 31 – paragraph 3 – point h
Article 31 – paragraph 3 – point h
(h) cooperating with all relevant competent authorities and the European Data the European Data Innovation Board to ensure that the obligations of Chapter VIthis Regulation are enforced consistently with other Union legislation and self-regulation applicable to providers of data processing service;ctor specific data governance rules and regulations
Amendment 1120 #
Proposal for a regulation
Article 31 – paragraph 4
Article 31 – paragraph 4
4. Where a Member State designates more than one competent authority, the competent authorities shall, in the exercise of the tasks and powers assigned to them under paragraph 3 of this Article, cooperate with each other, including, as appropriate, with the supervisory authority responsible for monitoring the application of Regulation (EU) 2016/679, to ensure the consistent application of this Regulation. In such cases, relevant Member States shall designate a coordinating, responsible competent authority.
Amendment 1126 #
Proposal for a regulation
Article 31 a (new)
Article 31 a (new)
Article 31 a Role of the European Data Innovation Board The European Data Innovation Board should foster the mutual exchange of information amongst competent authorities as well as advise and assist the Commission in matters of this Regulation falling under the competences of the Board in line with Article 30 of Regulation (EU) 2022/868
Amendment 1127 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
1. Without prejudice to any other administrative or judicial remedy, natural and legal persons shall have the right to lodge a complaint, individually or, where relevant , collectively, with the relevant competent authority in the Member State of their habitual residence, place of work or establishment if they consider that their rights or the obligations under this Regulation have been infringed.
Amendment 1129 #
Proposal for a regulation
Article 32 – paragraph 3
Article 32 – paragraph 3
3. Competent authorities shall cooperate early in the process to handle and resolve complaints, including by effectively and in a timely manner, including by setting reasonable deadlines for adopting formal decisions, ensuring equality of the parties, ensuring the right to be heard from complainants and access to the file throughout the process, exchanging all relevant information by electronic means, without undue delay. This cooperation shall not affect the specific cooperation mechanism provided for by Chapters VI and VII of Regulation (EU) 2016/679.
Amendment 1130 #
Proposal for a regulation
Article 32 – paragraph 3
Article 32 – paragraph 3
3. Competent authorities shall cooperate to handle and resolve complaints, including by effectively and in a timely manner, including by setting reasonable deadlines for adopting formal decisions, ensuring equality of the parties, ensuring the right to be heard from complainants and access to the file throughout the process, exchanging all relevant information by electronic means, without undue delay. This cooperation shall not affect the specific cooperation mechanism provided for by Chapters VI and VII of Regulation (EU) 2016/679.
Amendment 1131 #
Proposal for a regulation
Article 32 a (new)
Article 32 a (new)
Article 32 a Representation Without prejudice to Directive (EU) 2020/1828 or to any other type of representation under national law, recipients of intermediary services shall at least have the right to mandate a body, organisation or association to exercise the rights conferred by this Regulation on their behalf, provided the body, organisation or association meets all of the following conditions: (a) it operates on a not-for-profit basis; (b) it has been properly constituted in accordance with the law of a Member State; (c) its statutory objectives include a legitimate interest in ensuring that this Regulation is complied with.
Amendment 1132 #
Proposal for a regulation
Article 32 b (new)
Article 32 b (new)
Article 32 b Right to an effective judicial remedy against a competent authority 1. Without prejudice to any other administrative or non-judicial remedy, each user shall have the right to an effective judicial remedy against a legally binding decision of a competent authority concerning them. 2. Without prejudice to any other administrative or non-judicial remedy, each user shall have the right to an effective judicial remedy where the competent authority does not handle a complaint swiftly or does not inform the data subject within three months on the progress or outcome of the complaint lodged pursuant to Article 32. 3. Proceedings against a competent authority shall be brought before the courts of the Member State of the habitual residence, place of work or establishment of the user or their representative organisation. 4. Where proceedings are brought against a decision of a competent authority which was preceded by an opinion or a decision of the Board in the consistency mechanism, the supervisory authority shall forward that opinion or decision to the court.
Amendment 1133 #
Proposal for a regulation
Article 32 c (new)
Article 32 c (new)
Article 32 c Right to an effective judicial remedy against a controller or processor 1. Without prejudice to any available administrative or non-judicial remedy, including under Directive (EU) 2020/1828 and the righto lodge a complaint with a competent authority pursuant to Article 32b,each user shall have the right to an effective judicial remedy where he or she considers that their rights under this Regulation have been infringed as a result of the non-compliance with this Regulation. 2. Proceedings against a data holder, third party or data recipient shall be brought before the courts of the Member State where the user has their habitual residence, place or work or establishment.
Amendment 1135 #
Proposal for a regulation
Article 33 – paragraph 1
Article 33 – paragraph 1
1. Member States shall lay down the rules on penalties applicable to infringements of this Regulation and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive, including administrative fines against enterprises of a minimum of 20 000 000EUR or 4 % of the total worldwide annual turnover of the preceding financial year, whichever is higher.
Amendment 1139 #
Proposal for a regulation
Article 33 – paragraph 2
Article 33 – paragraph 2
2. Member States shall by [date of application of the Regulation] notify the Commission , the European Data Protection Board and the European Data Innovation Boardof those rules and measures and shall notify it them without delay of any subsequent amendment affecting them. The Commission shall regularly update and maintain an easily accessible public register of those measures.
Amendment 1143 #
The Commission shall develop and recommend non-binding model contractual terms on data access and use to assist parties in drafting and negotiating contracts with balanced contractual rights and obligations. These non-binding contractual terms shall be openly freely available in easily usable electronic format.
Amendment 1144 #
Proposal for a regulation
Article 34 – paragraph 1
Article 34 – paragraph 1
The Commission shall develop and recommend non-binding model contractual terms on data access and use to assist parties in drafting and negotiating contracts with balanced contractual rights and obligations. Such contractual terms shall be in line with Fair, Reasonable and Non- Discriminatory(FRAND) principles.
Amendment 1145 #
Proposal for a regulation
Article 34 – paragraph 1 a (new)
Article 34 – paragraph 1 a (new)
Amendment 1147 #
Proposal for a regulation
Article 35 – paragraph 1 a (new)
Article 35 – paragraph 1 a (new)
The right of the maker of a databaseas provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by data holders in such away that it prevents them from making data available to public sector bodies, or Union institutions, agencies or bodies, subsequent to a request made under Article 14 of this Regulation.
Amendment 1153 #
Proposal for a regulation
Article 41 – paragraph 1 – point e a (new)
Article 41 – paragraph 1 – point e a (new)
(e a) evaluation of the impacts of this Regulation to the development of business practices and monetisation practices of the European data economy and possible needs for reviewing the Regulation.