44 Amendments of Fabienne KELLER related to 2020/0340(COD)
Amendment 164 #
Proposal for a regulation
Recital 3
Recital 3
(3) It is necessary to improve the conditions for data sharing in the internal market, by creating a harmonised framework for data exchanges. Sector- specific legislation can develop, adapt and propose new and complementary elements, depending on the specificities of the sector, such as the envisaged legislation on the European health data space25 and on access to vehicle data. Moreover, certain sectors of the economy are already regulated by sector-specific Union law that include rules relating to cross-border or Union wide sharing or access to data26 . This Regulation is therefore without prejudice to Regulation (EU) 2016/679 of the European Parliament and of the Council (27 ), and in particular the implementation of this Regulation shall not prevent cross border transfers of data in accordance with Chapter V of Regulation (EU) 2016/679 from taking place, Directive (EU) 2016/680 of the European Parliament and of the Council (28 ), Directive (EU) 2016/943 of the European Parliament and of the Council (29 ), Regulation (EU) 2018/1807 of the European Parliament and of the Council (30 ), Regulation (EC) No 223/2009 of the European Parliament and of the Council (31 ), Directive 2000/31/EC of the European Parliament and of the Council (32 ), Directive 2001/29/EC of the European Parliament and of the Council (33 ), Directive (EU) 2019/790 of the European Parliament and of the Council (34 ), Directive 2004/48/EC of the European Parliament and of the Council (35 ), Directive (EU) 2019/1024 of the European Parliament and of the Council (36 ), as well as Regulation 2018/858/EU of the European Parliament and of the Council (37 ), Directive 2010/40/EU of the European Parliament and of the Council (38 ) and Delegated Regulations adopted on its basis, and any other sector-specific Union legislation that organises the access to and re-use of data. This Regulation should be without prejudice to the access and use of data for the purpose of international cooperation in the context of prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties. A horizontal regime for the re-use of certain categories of protected data held by public sector bodies, the provision of data sharing servicintermediaries and of services based on data altruism in the Union should be established. Specific characteristics of different sectors may require the design of sectoral data-based systems, while building on the requirements of this Regulation. Where a sector-specific Union legal act requires public sector bodies, providers of data sharing services or registered entities providing data altruism services to comply with specific additional technical, administrative or organisational requirements, including through an authorisation or certification regime, those provisions of that sector-specific Union legal act should also apply. _________________ 25 See: Annexes to the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Commission Work Programme 2021 (COM(2020) 690 final). 26For example, Directive 2011/24/EU in the context of the European Health Data Space, and relevant transport legislation such as Directive 2010/40/EU, Regulation 2019/1239 and Regulation (EU) 2020/1056, in the context of the European Mobility Data Space. 27Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), (OJ L 119, 4.5.2016, p.1) 28 Directive (EU) 2016/680 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data by competent authorities for the purposes of the prevention, investigation, detection or prosecution of criminal offences or the execution of criminal penalties, and on the free movement of such data, and repealing Council Framework Decision 2008/977/JHA. (OJ L 119, 4.5.2016, p.89) 29Directive (EU) 2016/943 of the European Parliament and of the Council of 8 June 2016 on the protection of undisclosed know-how and business information (trade secrets) against their unlawful acquisition, use and disclosure. (OJ L 157, 15.6.2016, p.1) 30 Regulation (EU) 2018/1807 of the European Parliament and of the Council of 14 November 2018 on a framework for the free flow of non-personal data in the European Union. (OJ L 303, 28.11.2018, p. 59) 31Regulation (EC) No 223/2009 of the European Parliament and of the Council of 11 March 2009 on European statistics and repealing Regulation (EC, Euratom) No 1101/2008 of the European Parliament and of the Council on the transmission of data subject to statistical confidentiality to the Statistical Office of the European Communities, Council Regulation (EC) No 322/97 on Community Statistics, and Council Decision 89/382/EEC, Euratom establishing a Committee on the Statistical Programmes of the European Communities. (OJ L 87, 31.03.2009, p. 164) 32Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000, on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce). (OJ L 178, 17.07.2000, p. 1) 33Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society. (OJ L 167, 22.6.2001, p. 10) 34 Directive (EU) 2019/790 of the European Parliament and of the Council of 17 April 2019 on copyright and related rights in the Digital Single Market and amending Directives 96/9/EC and 2001/29/EC. (OJ L 130, 17.5.2019, p. 92) 35Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights. (OJ L 157, 30.4.2004). 36Directive (EU) 2019/1024 of the European Parliament and of the Council of 20 June 2019 on open data and the re-use of public sector information. (OJ L 172, 26.6.2019, p. 56). 37 Regulation (EU) 2018/858 of the European Parliament and of the Council of 30 May 2018 on the approval and market surveillance of motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles, amending Regulations (EC) No 715/2007 and (EC) No 595/2009 and repealing Directive 2007/46/EC (OJ L 151, 14.6.2018). 38 Directive 2010/40/EU of the European Parliament and of the Council of 7 July 2010 on the framework for the deployment of Intelligent Transport Systems in the field of road transport and for interfaces with other modes of transport. (OJ L 207, 6.8.2010, p. 1)
Amendment 182 #
Proposal for a regulation
Recital 15
Recital 15
(15) Furthermore, it is important to protect commercially sensitive data of non- personal nature, notably trade secrets, but also non-personal data representing content protected by intellectual property rights from unlawful access that may lead to IP theft or industrial espionage. In order to ensure the protection of fundamental rights or interests of data holders, non-personal data which is to be protected from unlawful or unauthorised access under Union or national law, and which is held by public sector bodies, should be transferred only to third-countries where appropriate safeguards for the use of data are provided. Such appropriate safeguards should be considered to exist when in that third- country there are equivalent measures in place which ensure that non-personal data benefits from a level of protection similar to that applicable by means of Union or national law in particular as regards the protection of trade secrets and the protection of intellectual property rights. To that end, the Commission may adopt implementing acts that declare that a third country provides a level of protection that is essentially equivalent to those provided by Union or national law. The assessment of the level of protection afforded in such third-country should, in particular, take into consideration the relevant legislation, both general and sectoral, including concerning public security, defence, national security and criminal law concerning the access to and protection of non-personal data, any access by the public authorities of that third country to the data transferred, the existence and effective functioning of one or more independent supervisory authorities in the third country with responsibility for ensuring and enforcing compliance with the legal regime ensuring access to such data, or the third countries’ international commitments regarding the protection of data the third country concerned has entered into, or other obligations arising from legally binding conventions or instruments as well as from its participation in multilateral or regional systems. The existence of effective legal remedies for data holders, public sector bodies or data sharing providerintermediaries in the third country concerned is of particular importance in the context of the transfer of non-personal data to that third country. Such safeguards should therefore include the availability of enforceable rights and of effective legal remedies.
Amendment 191 #
Proposal for a regulation
Recital 22
Recital 22
(22) Providers of data sharing services (data intermediariData intermediation services) are expected to play a key role in the data economy, as a tool to facilitate the aggregation and exchange of substantial amounts of relevant data. Data intermediaries offering services that connect the different actors have the potential to contribute to the efficient pooling of data as well as to the facilitation of bilateral data sharing. Specialised data intermediaries that are independent from both data holders and data users can have a facilitating role in the emergence of new data-driven ecosystems independent from any player with a significant degree of market power. This Regulation should only cover providers of data sharingdata intermediation services that have as a main objective the establishment of a business, a legal and potentially also technical relation between data holders, including data subjects, on the one hand, and potential users on the other hand, and assist both parties in a transaction of data assets between the two. It should only cover services aiming at intermediating between an indefinite number of data holders and data users, excluding data sharing services that are meant to be used by a closed group of data holders and users. Data intermediation services do not share data themselves, but only provide an intermediation service to entities wishing to engage in data sharing. Providers of cloud services should be excluded, as well as service providers that obtain data from data holders, aggregate, enrich or transform the data and licence the use of the resulting data to data users, without establishing a direct relationship between data holders and data users, for example advertisement or data brokers, data consultancies, providers of data products resulting from value added to the data by the service provider. At the same time, data sharing service providerintermediation services should be allowed to make adaptations to the data exchanged, to the extent that this improves the usability of the data by the data user, where the data user desires this, such as to convert it into specific formats. In addition, services that focus on the intermediation of content, in particular on copyright- protected content, should not be covered by this Regulation. Data exchange platforms that are exclusively used by one data holder in order to enable the use of data they hold as well as platforms developed in the context of objects and devices connected to the Internet-of-Things that have as their main objective to ensure functionalities of the connected object or device and allow value added services, should not be covered by this Regulation. ‘Consolidated tape providers’ in the sense of Article 4 (1) point 53 of Directive 2014/65/EU of the European Parliament and of the Council42 as well as ‘account information service providers’ in the sense of Article 4 point 19 of Directive (EU) 2015/2366 of the European Parliament and of the Council43 should not be considered as data sharing service providers for the purposes of this Regulation. Entities which restrict their activities to facilitating use of data made available on the basis of data altruism and that operate on a not-for-profit basis should not be covered by Chapter III of this Regulation, as this activity serves objectives of general interest by increasing the volume of data available for such purposes. _________________ 42Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directive 2002/92/EC and Directive 2011/61/EU, OJ L 173/349. 43Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC.
Amendment 196 #
(27) In order to ensure the compliance of the providers of data sharing servicdata intermediaries with the conditions set out in this Regulation, such providerintermediaries should have a place of establishment in the Union. Alternatively, where a provider of data sharing servicesdata intermediary not established in the Union offers services within the Union, it should designate a representative. Designation of a representative is necessary, given that such providers of data sharing servicdata intermediaries handle personal data as well as commercially confidential data, which necessitates the close monitoring of the compliance of such service providerdata intermediaries with the conditions laid out in this Regulation. In order to determine whether such a provider of data sharing servicesdata intermediary is offering services within the Union, it should be ascertained whether it is apparent that the provider of data sharing servicesdata intermediary is planning to offer services to persons in one or more Member States. The mere accessibility in the Union of the website or of an email address and of other contact details of the provider of data sharing servicesdata intermediary, or the use of a language generally used in the third country where the provider of data sharing servicesdata intermediary is established, should be considered insufficient to ascertain such an intention. However, factors such as the use of a language or a currency generally used in one or more Member States with the possibility of ordering services in that other language, or the mentioning of users who are in the Union, may make it apparent that the provider of data sharing servicesdata intermediary is planning to offer services within the Union. The representative should act on behalf of the provider of data sharing servicesdata intermediary and it should be possible for competent authorities to contact the representative. The representative should be designated by a written mandate of the provider of data sharing servicesdata intermediary to act on the latter's behalf with regard to the latter's obligations under this Regulation.
Amendment 207 #
Proposal for a regulation
Article 1 – paragraph 1 – point b
Article 1 – paragraph 1 – point b
(b) a notification and supervisory framework for the provision of data sharingintermediation services;
Amendment 214 #
Proposal for a regulation
Article 1 – paragraph 2 a (new)
Article 1 – paragraph 2 a (new)
(2 a) This Regulation does not create a legal basis for the processing of personal data and should be without prejudice to Regulation (EU) 2016/679 and Directive 2002/58/EC of the European Parliament and of the Council1a, including the powers of supervisory authorities. In the event of a conflict between the provisions of this Regulation and Union law on the protection of personal data, the latter prevails.
Amendment 216 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 a (new)
Article 2 – paragraph 1 – point 2 a (new)
Amendment 219 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 b (new)
Article 2 – paragraph 1 – point 2 b (new)
Amendment 221 #
Proposal for a regulation
Article 2 – paragraph 1 – point 2 c (new)
Article 2 – paragraph 1 – point 2 c (new)
(2 c) ‘personal data’ means any information relating to a data subject as defined in point (1) of Article 4 of Regulation(EU) 2016/679;
Amendment 225 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 a (new)
Article 2 – paragraph 1 – point 3 a (new)
(3 a) ‘consent’ means consent as defined in point (11) of Article 4 of Regulation (EU) 2016/679;
Amendment 226 #
Proposal for a regulation
Article 2 – paragraph 1 – point 3 b (new)
Article 2 – paragraph 1 – point 3 b (new)
(3 b) 'data subject' means an identified or identifiable natural person as referred to in point (1) of Article 4 of Regulation (EU) 2016/679;
Amendment 231 #
Proposal for a regulation
Article 2 – paragraph 1 – point 6
Article 2 – paragraph 1 – point 6
(6) ‘data user’ means a natural or legal person who has lawful access to certain personal or non-personal data and is authorisedhas the right, including under Regulation EU (2016/679) in the case of personal data, to use that data for commercial or non- commercial purposes;
Amendment 235 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
(7) ‘'data shariexchange’ means the provision by a data holder of datar data intermediation service (or data intermediary) to a data user for the purpose of joint or individual use of the shared data, based on voluntary agreements, directly or through an intermediary;, under open data or commercial licences, for free or against remuneration; [to apply coherently throughout the text]
Amendment 273 #
Proposal for a regulation
Article 5 – paragraph 13
Article 5 – paragraph 13
(13) Where the re-user intends to transfer non-personal data to a third country, the public sector body shall inform the data holder about the intention to transfer ofthe data to that third country and the purpose for such transfer.
Amendment 285 #
Amendment 292 #
Proposal for a regulation
Article 10 – title
Article 10 – title
Notification of data sharing service providerintermediaries
Amendment 293 #
Proposal for a regulation
Article 10 – paragraph 1
Article 10 – paragraph 1
(1) Any provider of data sharing servicesintermediary who intends to provide the services referred to in Article 9 (1) shall submit a notification to the competent authority for data intermediaries, referred to in Article 12.
Amendment 294 #
Proposal for a regulation
Article 10 – paragraph 2
Article 10 – paragraph 2
(2) For the purposes of this Regulation, a provider of data sharing servicesdata intermediary with establishments in more than one Member State, shall be deemed to be under the jurisdiction of the Member State in which it has its main establishment.
Amendment 295 #
Proposal for a regulation
Article 10 – paragraph 3
Article 10 – paragraph 3
(3) A provider of data sharing servicesintermediary that is not established in the Union, but offers the services referred to in Article 9 (1) within the Union, shall appoint a legal representative in one of the Member States in which those services are offered. The provider shall be deemed to be under the jurisdiction of the Member State in which the legal representative is established.
Amendment 299 #
Proposal for a regulation
Article 11 – title
Article 11 – title
Conditions for providing data sharingintermediation services
Amendment 300 #
Proposal for a regulation
Article 11 – paragraph 1 – introductory part
Article 11 – paragraph 1 – introductory part
The provision of data sharingintermediation services referred in Article 9 (1) shall be subject to the following conditions:
Amendment 301 #
Proposal for a regulation
Article 11 – paragraph 1 – point 1
Article 11 – paragraph 1 – point 1
(1) the provider may notdata intermediary shall use the data for which it provides services for oonly in the context of ther purposes than to put them at the disposal of data users and data sharingrovision of services referred to in Article 9(1); these data intermediation services shall be placed in a separate legal entity;
Amendment 303 #
Proposal for a regulation
Article 11 – paragraph 1 – point 2
Article 11 – paragraph 1 – point 2
(2) the metadata collected from the provision of the data sharingintermediation service may be used only for the development of that service and should be made available to the data holders upon request;
Amendment 304 #
Proposal for a regulation
Article 11 – paragraph 1 – point 3
Article 11 – paragraph 1 – point 3
(3) the providerdata intermediary shall ensure that the procedure for access to its service is fair, transparent and non-discriminatory for both data holders and data users, including as regards prices and terms and conditions of the provision of service;
Amendment 305 #
Proposal for a regulation
Article 11 – paragraph 1 – point 4
Article 11 – paragraph 1 – point 4
(4) the providerdata intermediary shall facilitate the exchange of the data in the format in which it receives it from the data holder and shall convert the data into specific formats only to enhance interoperability within and across sectors or if requested by the data user or where mandated by Union law or to ensure harmonisation with international or European data standards;
Amendment 306 #
Proposal for a regulation
Article 11 – paragraph 1 – point 4 a (new)
Article 11 – paragraph 1 – point 4 a (new)
(4 a) the data intermediary may offer additional specific services facilitating the exchange of the data and tools capable of analysis, aggregation, improving the quality or conversion of data to data holders or data users. Those tools shall be used only at the explicit request or approval of the data holder and third- party tools offered in that context shall not use data for purposes other than those requested or approved by the data holder
Amendment 307 #
Proposal for a regulation
Article 11 – paragraph 1 – point 5
Article 11 – paragraph 1 – point 5
(5) the providerdata intermediary shall have procedures in place to monitor and prevent fraudulent or abusive practices in relation to access to data from parties seeking access through their services;
Amendment 308 #
Proposal for a regulation
Article 11 – paragraph 1 – point 6
Article 11 – paragraph 1 – point 6
(6) the providerdata intermediary shall ensure a reasonable continuity of provision of its services and, in the case of services which ensure storage of data, shall have sufficient and effective guarantees in place that allow data holders and data users to obtain access to their data and to retrieve their data in case of insolvency of the provider;
Amendment 310 #
Proposal for a regulation
Article 11 – paragraph 1 – point 7
Article 11 – paragraph 1 – point 7
(7) the providerdata intermediary shall put in place adequate technical, legal and organisational measures in order to prevent transfer or access to non-personal data that is unlawful under Union law;
Amendment 311 #
Proposal for a regulation
Article 11 – paragraph 1 – point 8
Article 11 – paragraph 1 – point 8
(8) the providerdata intermediary shall take measures to ensure a high level of security, including cybersecurity standards for the storage and transmission of non-personal data;
Amendment 312 #
Proposal for a regulation
Article 11 – paragraph 1 – point 9
Article 11 – paragraph 1 – point 9
(9) the providerdata intermediary shall have procedures in place to ensure compliance with the Union and national rules onlaw, including rules on data protection and competition;
Amendment 315 #
(10) the providerdata intermediary offering services to data subjects shall act in the data subjects’ best interest when facilitating the exercise of their rights, in particular by advising data subjects on potential data uses and standard terms and conditions attached to such uses;
Amendment 316 #
Proposal for a regulation
Article 11 – paragraph 1 – point 11
Article 11 – paragraph 1 – point 11
(11) where a providerdata intermediary provides tools for obtaining consent from data subjects or permissions to process data made available by legal persondata holders, it shall specify the jurisdiction or jurisdictions outside the Union in which the data use is intended to take place and provide data subjects with tools to withdraw consent and data holders with tools to withdraw permissions to process data at any point in time.
Amendment 332 #
Proposal for a regulation
Article 14 – paragraph 1
Article 14 – paragraph 1
This Chapter shall not apply to not-for- profit entities whose activities consist only in seeking to collect data for objectives of general interest, made available by natural or legal persons on the basis of data altruism.:
Amendment 333 #
Proposal for a regulation
Article 14 – paragraph 1 a (new)
Article 14 – paragraph 1 a (new)
(a) public sector bodies that offer data sharing facilities on a non-commercial basis;
Amendment 334 #
Proposal for a regulation
Article 14 a (new)
Article 14 a (new)
Article 14 a b) not-for-profit entities whose activities consist only in seeking to collect data for objectives of general interest, made available by natural or legal persons on the basis of data altruism.
Amendment 344 #
Proposal for a regulation
Article 19 – paragraph 1 – introductory part
Article 19 – paragraph 1 – introductory part
(1) Any entity entered in the register of recognised data altruism organisations shall inform data holders in a clear and comprehensible manner and prior to any processing of their data:
Amendment 348 #
Proposal for a regulation
Article 19 – paragraph 1 – point a
Article 19 – paragraph 1 – point a
(a) about the purposes of general interest for which it permits the processing of their data by a data user in an easy-to- understand manner;
Amendment 349 #
Proposal for a regulation
Article 19 – paragraph 1 – point b
Article 19 – paragraph 1 – point b
(b) about any processing outside the Unionf their data performed by a data user outside the Union, including the location and the purposes for which it permits the processing of data.
Amendment 353 #
Proposal for a regulation
Article 19 – paragraph 2 a (new)
Article 19 – paragraph 2 a (new)
(2 a) The entity shall also ensure that consent from data subjects or permissions to process data made available by legal entities can be withdrawn easily, at any point in time and in a user-friendly manner by the data subject or legal entities.
Amendment 357 #
Proposal for a regulation
Article 19 – paragraph 2 b (new)
Article 19 – paragraph 2 b (new)
(2 b) The entity shall take measures to ensure high level of security, including cybersecurity standards, for the storage and processing of data that it has collected based on data altruism.
Amendment 360 #
Proposal for a regulation
Article 19 – paragraph 3
Article 19 – paragraph 3
(3) Where an entity entered in the public register of recognised data altruism organisations provides tools for obtaining consent from data subjects or permissions to process data made available by legal persons, it shall specify the jurisdiction or jurisdictions outside of the Union in which the data use is intended to take place.
Amendment 377 #
Proposal for a regulation
Article 30 – paragraph 5
Article 30 – paragraph 5
(5) The public sector body, the natural or legal person to which the right to re-use data was granted under Chapter 2, the data sharing providerintermediary and the entity providing data altruism shall inform the data holder about the existence of a request of an administrative authority in a third-country to access its data before complying to the request, except in cases where the request serves law enforcement purposes and for as long as this is necessary to preserve the effectiveness of the law enforcement activity.
Amendment 379 #
Proposal for a regulation
Article 32 – paragraph 1
Article 32 – paragraph 1
By [fourtwo years after the datae of application of this Regulation], the Commission shall carry out an evaluation of this Regulation, andssessing, inter alia: (a) the conditions for re-use of data under Chapter II in view of their further harmonisation and the potential need for definition of highly sensitive data; (b) the level of compliance with the requirements set out in this Regulation, as well as the quality and security of services provided by data intermediaries under Chapter III; (c) the type of altruistic organisations registered under Chapter IV and overview of the objectives of general interests for which data are shared in view of establishing clear criteria in this respect; (d) the functioning of the Data Innovation Board; (e) the conditions for international access under Article 30. The Commission shall submit a report on its main findings to the European Parliament and to the Council as well as to the European Economic and Social Committee. Member States shall provide the Commission with the information necessary for the preparation of that report.