86 Amendments of Matjaž NEMEC related to 2022/0047(COD)
Amendment 103 #
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 110 #
Proposal for a regulation
Recital 5
Recital 5
(5) This Regulation ensures that users of a product or related service in the Union 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 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 micro, small or medium-sized enterprises within the meaning of Recommendation 2003/361/EC. 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 interestto respond to, prevent, or assist in the recovery from a public emergency. 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 112 #
(7) The fundamental right to the protection of personal data is safeguarded in particular under Regulation (EU) 2016/679 and Regulation (EU) 2018/1725. Directive 2002/58/EC additionally protects private life and the confidentiality of communications, including providing conditions to any personal and non- personal data storing in and access from terminal equipment. These instruments provide the basis for sustainable and responsible data processing, including where datasets include a mix of personal and non-personal data. This Regulation complements and is without prejudice to Union law on data protection and privacy, in particular Regulation (EU) 2016/679 and Directive 2002/58/EC. 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. 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 should prevail, except where explicitly foreseen otherwise under the body of this Regulation.
Amendment 116 #
Proposal for a regulation
Recital 8
Recital 8
(8) The principles of data minimisation and data protection by design and by default are essential when processing involves significant risks to the fundamental rights of individuals. Taking into account the state of the art, all parties to data sharing, including where within scope of this Regulation, should implement technical and organisational measures to protect these rights. Such measures include not only anonymisation, pseudonymisation and encryption, but also the use of increasingly available technology that permits algorithms to be brought to the data and allow valuable insights to be derived without the transmission between parties or unnecessary copying of the raw or structured data themselves.
Amendment 125 #
Proposal for a regulation
Recital 14
Recital 14
(14) Physical products that obtain, generate or collect, by means of their components, 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. 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 unless that data are lawfully processed using the product’s own computing capacity. 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.
Amendment 129 #
Proposal for a regulation
Recital 17
Recital 17
(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 software process that calculates derivative data from such data as such software process may be subject to intellectual property rightsincluding data processed using the product’s own computing capacity.
Amendment 135 #
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. The performance of a contract can only be a legal ground for processing of personal data if the data subject is a party or if steps are being taken at the request of the data subject prior to entering into a contract. The necessity requirement for processing personal data for the performance of a contract pursuant to Article 6(1)(b) of Regulation (EU) 2016/679 cannot be fulfilled by merely providing for processing in a contractual clause. Assessing what is objectively necessary must be fact-based, and this legal ground shall be allowed only in situations where it is not possible to perform service or provide product which the data subject has actively requested or signed up for without processing of specific data. Personal data necessary for the controller’s wider business mode but not necessary for the individual services requested by the data subject, do not fulfil this requirement. 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 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 143 #
Proposal for a regulation
Recital 30
Recital 30
(30) The use of a product or related service may, in particular when the user is a natural person, generate data that relates to an identified or identifiable natural person (the data subject). Processing of such data is subject to the rules established under Regulation (EU) 2016/679, including where personal and non-personal data in a data set are inextricably linked64 . The data subject may be the user or another natural person. Personal data may only be requested by a controller or a data subject. A user who is the data subject is under certain circumstances entitled under Regulation (EU) 2016/679 to access personal data concerning them, and such rights are unaffected by this Regulation. Under this Regulation, the user who is a natural person is further entitled to access all data generated by the product, personal and non-personal. Where the user is not the data subject but an enterprise, including a sole trader, and not in cases of shared household use of the product, the user will be a controller within the meaning of Regulation (EU) 2016/679. Accordingly, such a user as controller intending to request personal data generated by the use of a product or related service is required to have a legal basis for processing the data under Article 6(1) of Regulation (EU) 2016/679, such as the consent of the data subject or legitimate interest. This user should ensure that the data subject is appropriately informed of the specified, explicit and legitimate purposes for processing those data, and how the data subject may effectively exercise their rights. Where the data holder and the user are joint controllers within the meaning of Article 26 of Regulation (EU) 2016/679, they are required to determine, in a transparent manner by means of an arrangement between them, their respective responsibilities for compliance with that Regulation. It should be understood that such a user, once data has been made available, may in turn become a data holder, if they meet the criteria under this Regulation and thus become subject to the obligations to make data available under this Regulation. Where the user is a Union institution, agency or body, Regulation(EU) 2018/1725 should apply unprejudiced. _________________ 64 OJ L 303, 28.11.2018, p. 59–68.
Amendment 145 #
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 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. It also allows the data holder to set reasonable compensation to be met by third parties, but not by the user, forwhich cannot exceed 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 148 #
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. The data holder or the third party should not make the exercise of 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, byor 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, 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 choice. Common and lLegitimate commercial practices that are in compliance with Union law should not in themselves be regarded as constituting dark patterns. Third parties should comply with their obligations under relevant Union law, in particular the requirements set out in Directive 2005/29/EC, Directive 2011/83/EU, Directive 2000/31/EC and Directive 98/6/EC.
Amendment 152 #
Proposal for a regulation
Recital 37
Recital 37
Amendment 154 #
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. 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 availableThis Regulation precludes the data holder or the third party from directly or indirectly charging users a fee, or any compensation of costs for sharing or accessing data.
Amendment 157 #
Proposal for a regulation
Recital 44
Recital 44
(44) To protect micro, small or medium-sized enterprises from excessive economic burdens which would make it commercially too difficult for them to develop and run innovative business modelsavoid directly or indirectly incentivising the commercialisation or trade of personal data, the compensation for making data available to be paid by them should not exceed the direct cost of making the data available and be non-discriminatory.
Amendment 158 #
Proposal for a regulation
Recital 46
Recital 46
Amendment 159 #
Proposal for a regulation
Recital 47
Recital 47
(47) Transparency is an important principle to ensure that the compensation requested by the data holder is reasonable, or, in case the data recipient is a micro, small or medium-sized enterprise, that the compensation does not exceed the costs directly related to making the data available to the data recipient and is attributable to the individual request. In order to put the data recipient in the position to assess and verify that the compensation complies with the requirements under this Regulation, the data holder should provide to the data recipient the information for the calculation of the compensation with a sufficient degree of detail.
Amendment 163 #
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 cases. 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 173 #
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 specific task in the public interest that has been explicitly provided in law. 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.
Amendment 177 #
Proposal for a regulation
Recital 61
Recital 61
(61) A proportionate, limited and predictable framework at Union level is necessary for the making available of data by data holders, in cases of exceptional needs, to public sector bodies and to Union institution, agencies or bodies both to ensure legal certainty and to minimise the administrative burdens placed on businesses. To this end, data requests by public sector bodies and by Union institution, agencies and bodies to data holders should be transparent and proportionate in terms of their scope of content and their granularity. The purpose of the request and the intended use of the data requested should be specific and clearly explained, while allowing appropriate flexibility for the requesting entity to perform its tasks in the public interest. The request should also respect the legitimate interests of the businesses to whom the request is made. The burden on data holders should be minimised by obliging requesting entities to respect the once-only principle, which prevents the same data from being requested more than once by more than one public sector body or Union institution, agency or body where those data are needed to respond to a public emergency. To ensure transparency, data requests made by public sector bodies and by Union institutions, agencies or bodies should be made public without undue delay by the entity requesting the data and online public availability of all requests justified by a public emergency should be ensured.
Amendment 182 #
Proposal for a regulation
Recital 62
Recital 62
(62) The objective of the obligation to provide the data is to ensure that public sector bodies and Union institutions, agencies or bodies have the necessary knowledge to respond to, prevent or recover from public emergencies or to maintain the capacity to fulfil specific tasks explicitly provided by law. The data obtained by those entities may be commercially sensitive. Therefore, Directive (EU) 2019/1024 of the European Parliament and of the Council65 should not apply to data made available under this Regulation and should not be considered as open data available for reuse by third parties. This however should not affect the applicability of Directive (EU) 2019/1024 to the reuse of official statistics for the production of which data obtained pursuant to this Regulation was used, provided the reuse does not include the underlying data. In addition, it should not affect the possibility of sharing the data for conducting research or for the compilation of official statistics, provided the conditions laid down in this Regulation are met. Public sector bodies should also be allowed to exchange data obtained pursuant to this Regulation with other public sector bodies to address the exceptional needs for which the data has been requested. _________________ 65 Directive (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).
Amendment 186 #
Proposal for a regulation
Recital 63
Recital 63
(63) Data holders should have the possibility to either ask for a modification of the request made by a public sector body or Union institution, agency and body or its cancellation in a period of 5 or 15 working days depending on the nature of the exceptional need invoked in the request. In case of requests motivated by a public emergency,A justified reason not to make the data available should exist if it can be shown that the request is similar or identical to a previously submitted request for the same purpose by another public sector body or by another Union institution, agency or body. A data holder rejecting the request or seeking its modification should communicate the underlying justification for refusing the request to the public sector body or to the Union institution, agency or body requesting the data. In case the sui generis database rights under Directive 96/6/EC of the European Parliament and of the Council66 apply in relation to the requested datasets, data holders should exercise their rights in a way that does not prevent the public sector body and Union institutions, agencies or bodies from obtaining the data, or from sharing it, in accordance with this Regulation. _________________ 66 Directive 96/9/EC of the European Parliament and of the Council of 11 March 1996 on the legal protection of databases (OJ L 77, 27.3.1996, p. 20).
Amendment 192 #
Proposal for a regulation
Recital 67
Recital 67
(67) When the safeguarding of a significant public good is at stake, such as is the case of responding to public emergencies, the public sector body or the Union institution, agency or body should not be expected to compensate enterprises for the data obtained. Public emergencies are rare events and not all such emergencies require the use of data held by enterprises. The business activities of the data holders are therefore not likely to be negatively affected as a consequence of the public sector bodies or Union institutions, agencies or bodies having recourse to this Regulation. However, as cases of an exceptional need other than responding to a public emergency might be more frequent, including cases of prevention of or recovery from a public emergency, data holders should in such cases be entitled to a reasonable compensation which should not exceed the technical and organisational costs incurred in complying with the request and the reasonable margin required for making the data available to the public sector body or to the Union institution, agency or body. The compensation should not be understood as constituting payment for the data itself and as being compulsory.
Amendment 196 #
Proposal for a regulation
Recital 81
Recital 81
(81) In order to ensure the efficient implementation of this Regulation, Member States should designate one or more competent authorities. If a Member State designates more than one competent authority, it should also designate a coordinating competent authority. Competent authorities should cooperate with each other. The authorities responsible for the supervision of compliance with data protection and competent authorities designated under sectoral legislation should have the responsibility for application of this Regulation in their areas of competence.
Amendment 202 #
Proposal for a regulation
Article 1 – paragraph 1
Article 1 – paragraph 1
1. This Regulation lays down harmonised rules on making data generated by the use of a product or related service available to the user of that product or service, on the making data available by data holders to data recipients, and on the making data available by data holders to public sector bodies or Union institutions, agencies or bodies, where there is an exceptional need, for the performance of a task carried out in the public interestdue to a public emergency:
Amendment 208 #
Proposal for a regulation
Article 1 – paragraph 2 – point d
Article 1 – paragraph 2 – point d
(d) public sector bodies and Union institutions, agencies or bodies that request data holders to make data available where there is an exceptional need to that data for the performance of a task carried out in the public interestdue to a public emergency explicitly provided by law, and the data holders that provide those data in response to such request;
Amendment 210 #
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, Regulation (EU) 2018/1725 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 this Regulation is restricted in line with Article 6 of this Regulation, 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 225 #
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 227 #
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 229 #
(1 c) ‘consent’ means consent as defined in Article 4, point (11), of Regulation (EU) 2016/679;
Amendment 232 #
Proposal for a regulation
Article 2 – paragraph 1 – point 1 d (new)
Article 2 – paragraph 1 – point 1 d (new)
(1 d) 'data subject' means data subject as referred to in Article 4, point (1), of Regulation (EU) 2016/679;
Amendment 235 #
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, item that obtains, generates or collects, data concerning its use or environment, and that is able to communicate data via a publicly available electronic communications service and whose primary function is not the storing and processing of data nor is it primarily designed to display or play content, or to record and transmit content;
Amendment 240 #
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 servicesrelated service, and the data subject;
Amendment 245 #
Proposal for a regulation
Article 2 – paragraph 1 – point 7
Article 2 – paragraph 1 – point 7
(7) ‘data recipient’ means a legal or natural person, acting for purposes which are related to that person’s trade, business, craft or profession, other than the user of a product or related service, to whom the data holder makes data available, including a third party following an explicit request by the user to the data holder or in accordance with a legal obligation under Union law or national legislation implementing Union law, and including a third party to whom the data is directly made available by the user;
Amendment 246 #
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 user 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 user, offer individualised services to the user 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 248 #
Proposal for a regulation
Article 2 – paragraph 1 – point 9
Article 2 – paragraph 1 – point 9
(9) ‘public sector body’ means national, regional or local authorities of the Member States and bodies governed by public law of the Member States, or associations formed by one or more such authorities or one or more such bodies who have the ability to securely and reliably process the data requested from data holders;
Amendment 251 #
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, major natural disasters, including those aggravated by climate change and environmental degradation, 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 stability, or the substantial degradation of economic assets in the Union or the relevant Member State(s); and it is determined according to the respective procedures under Union or national law;
Amendment 260 #
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, easily, securely and, where relevant and appropriate, directly accessible to the user in a structured, commonly used and machine-readable format, free of charge. Products shall be designed and manufactured, and related services shall be provided, 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. Where users can reasonably expect it due to the nature of the product, products shall be designed and manufactured, and related services shall be provided, in such a manner that a basic set of functionalities is maintained when the product or related service is used offline.
Amendment 265 #
Proposal for a regulation
Article 3 – paragraph 1 a (new)
Article 3 – paragraph 1 a (new)
1 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 268 #
Proposal for a regulation
Article 3 – paragraph 1 b (new)
Article 3 – paragraph 1 b (new)
1 b. The data holder shall not incentivise, directly or indirectly, the commercialisation and trade of personal data.
Amendment 269 #
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, users should be presented with granular, meaningful consent options for data processing, within the meaning of Article 4(11) of Regulation (EU) 2016/679, differentiating between data that is essential for the functioning of the product and a related service and other types of data. In addition, at least the following information shall be provided to the user, in a timely and prominent manner, in an easily accessible, clear and comprehensible format:
Amendment 273 #
Proposal for a regulation
Article 3 – paragraph 2 – point c
Article 3 – paragraph 2 – point c
(c) how the user may access and request a copy of those data;
Amendment 277 #
Proposal for a regulation
Article 3 – paragraph 2 – point d
Article 3 – paragraph 2 – point d
(d) whether the manufacturer supplying the product or the service provider providing the related service intends to use the data itself or allow a third party to use the data and, if so, the identity of the third party and the purposes for which those data will be used;
Amendment 278 #
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 283 #
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 its use of a product or related service without undue delay, free of charge and, where applicable, continuously and in real-time in a structured, commonly used and machine-readable format. This shall be done on the basis of a simple request through electronic means where technically feasible.
Amendment 290 #
Proposal for a regulation
Article 4 – paragraph 5
Article 4 – paragraph 5
5. Where the user is not a data subject, any personal data generated by the use of a product or related service shall only be made available by the data holder to the user where all conditions and rules provided by data protection legislation are complied with, notably where there is a valid legal basis under Article 6(1) of Regulation (EU) 2016/679 and, where relevant, the conditions of Article 9 of Regulation (EU) 2016/679 679 and Article 5(3) of Directive 2002/58/EC are fulfilled.
Amendment 293 #
Proposal for a regulation
Article 5 – paragraph 1
Article 5 – paragraph 1
1. Upon explicit 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. and only for the purposes of:
Amendment 294 #
Proposal for a regulation
Article 5 – paragraph 1 – point a (new)
Article 5 – paragraph 1 – point a (new)
(a) the provision of aftermarket services, such as the maintenance and repair of the product or related service, including aftermarket services in competition with a product or related service provided by the data holder;
Amendment 295 #
Proposal for a regulation
Article 5 – paragraph 1 – point b (new)
Article 5 – paragraph 1 – point b (new)
(b) the provision of an added value service explicitly requested by the user;
Amendment 296 #
Proposal for a regulation
Article 5 – paragraph 1 – point c (new)
Article 5 – paragraph 1 – point c (new)
(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;
Amendment 297 #
Proposal for a regulation
Article 5 – paragraph 1 – point d (new)
Article 5 – paragraph 1 – point d (new)
(d) research and innovation predominantly in the public interest;
Amendment 298 #
Proposal for a regulation
Article 5 – paragraph 1 – point e (new)
Article 5 – paragraph 1 – point e (new)
(e) purposes of non-profit organisations predominantly in the public interest.
Amendment 304 #
Proposal for a regulation
Article 5 – paragraph 3
Article 5 – paragraph 3
3. The user or third party shall not be required to provide any information beyond what is strictly necessary to verify the quality as user or as third party pursuant to paragraph 1. The data holder shall not keep any information on the third party’s access to the data requested beyond what is necessary for the sound execution of the third party’s access request and for the security and the maintenance of the data infrastructure.
Amendment 307 #
Proposal for a regulation
Article 5 – paragraph 6
Article 5 – paragraph 6
6. Where the user is not a data subject, any personal data generated by the use of a product or related service shall only be made available by the data holder to the third party where all conditions and rules provided by data protection legislation are complied with, notably where there is a valid legal basis under Article 6(1) of Regulation (EU) 2016/679 and where relevant, the conditions of Article 9 of Regulation (EU) 2016/679 and Article 5(3) of Directive2002/58/EC are fulfilled.
Amendment 313 #
Proposal for a regulation
Article 6 – paragraph 1
Article 6 – paragraph 1
1. A third party shall process thepersonal data made available to it pursuant to Article 5 only for the purposes and under the conditions agreed with the user, and specific purposes mentioned in article 5, paragraph 1 and under the conditions agreed with the user, and where all conditions and rules provided by data protection legislation are complied with, notably where there is a valid legal basis under Article 6 of Regulation (EU) 2016/679 and where relevant, the conditions of Article 9 of Regulation (EU) 2016/679 and Article 5(3) of Directive 2002/58/EC are fulfilled and subject to the rights of the data subject insofar as personal data are concerned, and shall delete the data when they are no longer necessary for the agreed purposeexplicitly requested purpose in line with paragraph 1 of article 5.
Amendment 318 #
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 useror a part thereof, including its structure, design, function or manner of operation;
Amendment 322 #
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 servicepecific service explicitly requested by the user;
Amendment 325 #
Proposal for a regulation
Article 6 – paragraph 2 – point c
Article 6 – paragraph 2 – point c
(c) make the data available it receives to another third party, in raw, aggregated or derived form, unless this is necessary to provide the service requested by the user, and the user has explicitly been made aware of this in a clear, easily accessible and prominent way and, in the case of personal data, the rights and obligations of Regulation (EU) 2016/679 are respected;
Amendment 329 #
Proposal for a regulation
Article 6 – paragraph 2 – point f a (new)
Article 6 – paragraph 2 – point f a (new)
Amendment 330 #
Proposal for a regulation
Article 6 – paragraph 2 – point f b (new)
Article 6 – paragraph 2 – point f b (new)
(f b) incentivise, directly or indirectly, the commercialisation and trade of personal data.
Amendment 333 #
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 335 #
Proposal for a regulation
Article 7 a (new)
Article 7 a (new)
Article 7 a Unfair contractual terms imposed on users Any contractual term by data holders, third parties or data recipients which, to the detriment of the user, excludes the application of this Chapter, derogates from it, or varies its effect, shall not be binding on that party.
Amendment 337 #
Proposal for a regulation
Article 8 – paragraph 4
Article 8 – paragraph 4
4. A data holder shall not make data available to a data recipient on an exclusive basis unless explicitly requested by the user under Chapter II.
Amendment 340 #
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. The data holder or the third party may not directly or indirectly charge users a fee or any compensation of costs for sharing or accessing data.
Amendment 342 #
Proposal for a regulation
Article 9 – paragraph 2
Article 9 – paragraph 2
Amendment 345 #
Proposal for a regulation
Article 9 – paragraph 4
Article 9 – paragraph 4
4. The data holder shall provide the data recipient with information setting out the basis for the calculation of the compensation in sufficient detail so that the data recipient can verify that the requirements of paragraph 1 and, where applicable, paragraph 2 are met.
Amendment 347 #
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. This is without prejudice to the data subjects’ rights to seek redress before a supervisory authority, and to the controller’s data protection obligations.
Amendment 349 #
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 access data, obtain a copy or effectively 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). Where personal data is concerned, these technical measures shall be consistent with the obligation of the data controller to implement appropriate technical and organisational measures so as to ensure a level of security appropriate to the risk of the personal data processing pursuant to data protection legislation.
Amendment 352 #
Proposal for a regulation
Article 11 – paragraph 2 – introductory part
Article 11 – paragraph 2 – introductory part
2. A data recipient that has, for the purposes of obtaining data, provided inaccurate or false information to the data holder, deployed deceptive or coercive means or abused evident gaps in the technical infrastructure of the data holder designed to protect the data, has used the data made available for unauthorised purposes or has disclosed those data to another party without the data holder’s authorisation or in the case of personal data, an appropriate legal basis, shall without undue delay, unless the data holder or the user instruct otherwise:
Amendment 356 #
Proposal for a regulation
Article 11 – paragraph 3 – introductory part
Article 11 – paragraph 3 – introductory part
3. Paragraph 2, point (b), shall not apply in either of the following cases where non-personal data are concerned:
Amendment 359 #
2 a. Any contractual term in a data sharing agreement between data holders and data recipients which, to the detriment of the data subjects, undermines the application of their rights to privacy and data protection, derogates from it, or varies its effect, shall not be binding on that party.
Amendment 365 #
Proposal for a regulation
Article 14 – paragraph 2
Article 14 – paragraph 2
Amendment 371 #
Proposal for a regulation
Article 15 – paragraph 1 – introductory part
Article 15 – paragraph 1 – introductory part
An exceptional need to use data within the meaning of this Chapter shall be deemed to exist in any of the following circumstances:
Amendment 372 #
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 tolimited in time and scope and necessary to respond to a public emergency or to help prevent a public emergency or to assist the recovery from a public emergency;
Amendment 374 #
Proposal for a regulation
Article 15 – paragraph 1 – point b
Article 15 – paragraph 1 – point b
Amendment 377 #
Proposal for a regulation
Article 15 – paragraph 1 – point c
Article 15 – paragraph 1 – point c
Amendment 385 #
Proposal for a regulation
Article 16 – paragraph 1
Article 16 – paragraph 1
1. This Chapter shall not affect obligations laid down in Union or national law for the purposes of reporting, complying with information requests or demonstrating or verifying compliance with legal obligations, including in relation to official statistics.
Amendment 410 #
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 pseudonymise the data, insofar as the request can be fulfilled with pseudonymised data.
Amendment 424 #
Proposal for a regulation
Article 20 – paragraph 2
Article 20 – paragraph 2
Amendment 463 #
Proposal for a regulation
Article 31 – paragraph 1
Article 31 – paragraph 1
1. Each Member State shall designate one or more competent authoritiesy as responsible for the application and enforcement of this Regulation. Member States may establish one or morea new authoritiesy or rely on existing authorities.
Amendment 464 #
Proposal for a regulation
Article 31 – paragraph 1 a (new)
Article 31 – paragraph 1 a (new)
1 a. The independent supervisory authorities responsible for monitoring the application of Regulation (EU) 2016/679 shall be responsible for monitoring the application of this Regulation insofar as the protection of personal data is concerned. Chapters VI and VII of Regulation (EU) 2016/679 shall apply mutatis mutandis. The European Data Protection Supervisor shall be responsible for monitoring the application of this Regulation insofar as it concerns the Union institutions, bodies, offices and agencies. Where relevant, Article 62 of Regulation 2018/1725 shall apply mutatis mutandis. The tasks and powers of the supervisory authorities shall be exercised with regard to the processing of personal data.
Amendment 468 #
Proposal for a regulation
Article 31 – paragraph 2 – point a
Article 31 – paragraph 2 – point a
Amendment 473 #
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 experience, , sufficient technical and human resources and expertise in the field of data and electronic communications services.
Amendment 479 #
Proposal for a regulation
Article 31 – paragraph 3 – point i a (new)
Article 31 – paragraph 3 – point i a (new)
(i a) ensuring data sharing is free of charge for users.
Amendment 480 #
Proposal for a regulation
Article 31 – paragraph 4
Article 31 – paragraph 4
4. Where a Member State designates more than one competent authority, tThe 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 competent authority.
Amendment 482 #
Proposal for a regulation
Article 31 – paragraph 5
Article 31 – paragraph 5
5. Member States shall communicate the name of the designated competent authorities and their respective tasks and powers and, where applicable, the name of the coordinating competent authority to the Commission. The Commission shall maintain a public register of those authorities.
Amendment 488 #
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. The Commission shall consult the European Data Protection Board when developing such model contractual terms, as far as personal data are concerned.