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keyboard_tab Digital Governance Act 2022/0868 EN

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Article 3

Categories of data

1.   This Chapter applies to data held by public sector bodies which are protected on grounds of:

(a)

commercial confidentiality, including business, professional and company secrets;

(b)

statistical confidentiality;

(c)

the protection of intellectual property rights of third parties; or

(d)

the protection of personal data, insofar as such data fall outside the scope of Directive (EU) 2019/1024.

2.   This Chapter does not apply to:

(a)

data held by public_undertakings;

(b)

data held by public service broadcasters and their subsidiaries, and by other bodies or their subsidiaries for the fulfilment of a public service broadcasting remit;

(c)

data held by cultural establishments and educational establishments;

(d)

data held by public sector bodies which are protected for reasons of public security, defence or national security; or

(e)

data the supply of which is an activity falling outside the scope of the public task of the public sector bodies concerned as defined by law or by other binding rules in the Member State concerned, or, in the absence of such rules, as defined in accordance with common administrative practice in that Member State, provided that the scope of the public tasks is transparent and subject to review.

3.   This Chapter is without prejudice to:

(a)

Union and national law and international agreements to which the Union or Member States are party on the protection of categories of data referred to in paragraph 1; and

(b)

Union and national law on access to documents.

Article 4

Prohibition of exclusive arrangements

1.   Agreements or other practices pertaining to the re-use of data held by public sector bodies containing categories of data referred to in Article 3(1) which grant exclusive rights or which have as their objective or effect to grant such exclusive rights or to restrict the availability of data for re-use by entities other than the parties to such agreements or other practices shall be prohibited.

2.   By way of derogation from paragraph 1, an exclusive right to re-use data referred to in that paragraph may be granted to the extent necessary for the provision of a service or the supply of a product in the general interest that would not otherwise be possible.

3.   An exclusive right as referred to in paragraph 2 shall be granted through an administrative act or contractual arrangement in accordance with applicable Union or national law and in compliance with the principles of transparency, equal treatment and non-discrimination.

4.   The duration of an exclusive right to re-use data shall not exceed 12 months. Where a contract is concluded, the duration of the contract shall be the same as the duration of the exclusive right.

5.   The grant of an exclusive right pursuant to paragraphs 2, 3 and 4, including the reasons as to why it is necessary to grant such a right, shall be transparent and be made publicly available online, in a form that complies with relevant Union law on public procurement.

6.   Agreements or other practices falling within the scope of the prohibition referred to in paragraph 1 which do not meet the conditions laid down in paragraphs 2 and 3 and which were concluded before 23 June 2022 shall be terminated at the end of the applicable contract and in any event by 24 December 2024.

Article 5

Conditions for re-use

1.   Public sector bodies which are competent under national law to grant or refuse access for the re-use of one or more of the categories of data referred to in Article 3(1) shall make publicly available the conditions for allowing such re-use and the procedure to request the re-use via the single information point referred to in Article 8. Where they grant or refuse access for re-use, they may be assisted by the competent bodies referred to in Article 7(1).

Member States shall ensure that public sector bodies are equipped with the necessary resources to comply with this Article.

2.   Conditions for re-use shall be non-discriminatory, transparent, proportionate and objectively justified with regard to the categories of data and the purposes of re-use and the nature of the data for which re-use is allowed. Those conditions shall not be used to restrict competition.

3.   Public sector bodies shall, in accordance with Union and national law, ensure that the protected nature of data is preserved. They may provide for the following requirements:

(a)

to grant access for the re-use of data only where the public_sector_body or the competent body, following the request for re-use, has ensured that data has been:

(i)

anonymised, in the case of personal data; and

(ii)

modified, aggregated or treated by any other method of disclosure control, in the case of commercially confidential information, including trade secrets or content protected by intellectual property rights;

(b)

to access and re-use the data remotely within a secure processing environment that is provided or controlled by the public_sector_body;

(c)

to access and re-use the data within the physical premises in which the secure processing environment is located in accordance with high security standards, provided that remote access cannot be allowed without jeopardising the rights and interests of third parties.

4.   In the case of re-use allowed in accordance with paragraph 3, points (b) and (c), the public sector bodies shall impose conditions that preserve the integrity of the functioning of the technical systems of the secure processing environment used. The public_sector_body shall reserve the right to verify the process, the means and any results of processing of data undertaken by the re-user to preserve the integrity of the protection of the data and reserve the right to prohibit the use of results that contain information jeopardising the rights and interests of third parties. The decision to prohibit the use of the results shall be comprehensible and transparent to the re-user.

5.   Unless national law provides for specific safeguards on applicable confidentiality obligations relating to the re-use of data referred to in Article 3(1), the public_sector_body shall make the re-use of data provided in accordance with paragraph 3 of this Article conditional on the adherence by the re-user to a confidentiality obligation that prohibits the disclosure of any information that jeopardises the rights and interests of third parties that the re-user may have acquired despite the safeguards put in place. Re-users shall be prohibited from re-identifying any data subject to whom the data relates and shall take technical and operational measures to prevent re-identification and to notify any data breach resulting in the re-identification of the data subjects concerned to the public_sector_body. In the event of the unauthorised re-use of non-personal data, the re-user shall, without delay, where appropriate with the assistance of the public_sector_body, inform the legal persons whose rights and interests may be affected.

6.   Where the re-use of data cannot be allowed in accordance with the obligations laid down in paragraphs 3 and 4 of this Article and there is no legal basis for transmitting the data under Regulation (EU) 2016/679, the public_sector_body shall make best efforts, in accordance with Union and national law, to provide assistance to potential re-users in seeking consent of the data subjects or permission from the data holders whose rights and interests may be affected by such re-use, where it is feasible without a disproportionate burden on the public_sector_body. Where it provides such assistance, the public_sector_body may be assisted by the competent bodies referred to in Article 7(1).

7.   Re-use of data shall be allowed only in compliance with intellectual property rights. The right of the maker of a database as provided for in Article 7(1) of Directive 96/9/EC shall not be exercised by public sector bodies in order to prevent the re-use of data or to restrict re-use beyond the limits set by this Regulation.

8.   Where data requested is considered to be confidential, in accordance with Union or national law on commercial or statistical confidentiality, the public sector bodies shall ensure that the confidential data is not disclosed as a result of allowing re-use, unless such re-use is allowed in accordance with paragraph 6.

9.   Where a re-user intends to transfer non-personal data protected on the grounds set out in Article 3(1) to a third country, it shall inform the public_sector_body of its intention to transfer such data and the purpose of such transfer at the time of requesting the re-use of such data. In the case of re-use in accordance with paragraph 6 of this Article, the re-user shall, where appropriate with the assistance of the public_sector_body, inform the legal person whose rights and interests may be affected of that intention, purpose and the appropriate safeguards. The public_sector_body shall not allow the re-use unless the legal person gives permission for the transfer.

10.   Public sector bodies shall transmit non-personal confidential data or data protected by intellectual property rights to a re-user which intends to transfer those data to a third country other than a country designated in accordance with paragraph 12 only if the re-user contractually commits to:

(a)

complying with the obligations imposed in accordance with paragraphs 7 and 8 even after the data is transferred to the third country; and

(b)

accepting the jurisdiction of the courts or tribunals of the Member State of the transmitting public_sector_body with regard to any dispute related to compliance with paragraphs 7 and 8.

11.   Public sector bodies shall, where relevant and to the extent of their capabilities, provide guidance and assistance to re-users in complying with the obligations referred to in paragraph 10 of this Article.

In order to assist public sector bodies and re-users, the Commission may adopt implementing acts establishing model contractual clauses for complying with the obligations referred to in paragraph 10 of this Article. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 33(3).

12.   Where justified because of the substantial number of requests across the Union concerning the re-use of non-personal data in specific third countries, the Commission may adopt implementing acts declaring that the legal, supervisory and enforcement arrangements of a third country:

(a)

ensure protection of intellectual property and trade secrets in a way that is essentially equivalent to the protection ensured under Union law;

(b)

are being effectively applied and enforced; and

(c)

provide effective judicial redress.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 33(3).

13.   Specific Union legislative acts may deem certain non-personal data categories held by public sector bodies to be highly sensitive for the purposes of this Article where their transfer to third countries may put at risk Union public policy objectives, such as safety and public health or may lead to the risk of re-identification of non-personal, anonymised data. Where such an act is adopted, the Commission shall adopt delegated acts in accordance with Article 32 supplementing this Regulation by laying down special conditions applicable to the transfers of such data to third countries.

Those special conditions shall be based on the nature of the non-personal data categories identified in the specific Union legislative act and on the grounds for deeming those categories to be highly sensitive, taking into account the risks of re-identification of non-personal, anonymised data. They shall be non-discriminatory and limited to what is necessary to achieve the Union public policy objectives identified in that act, in accordance with the Union’s international obligations.

If required by specific Union legislative acts as referred to in the first subparagraph, such special conditions may include terms applicable for the transfer or technical arrangements in this regard, limitations with regard to the re-use of data in third countries or categories of persons entitled to transfer such data to third countries or, in exceptional cases, restrictions with regard to transfers to third countries.

14.   The natural or legal person to which the right to re-use non-personal data was granted may transfer the data only to those third countries for which the requirements in paragraphs 10, 12 and 13 are met.

Article 6

Fees

1.   Public sector bodies which allow re-use of the categories of data referred to in Article 3(1) may charge fees for allowing the re-use of such data.

2.   Any fees charged pursuant to paragraph 1 shall be transparent, non-discriminatory, proportionate and objectively justified and shall not restrict competition.

3.   Public sector bodies shall ensure that any fees can also be paid online through widely available cross-border payment services, without discrimination based on the place of establishment of the payment service provider, the place of issue of the payment instrument or the location of the payment account within the Union.

4.   Where public sector bodies charge fees, they shall take measures to provide incentives for the re-use of the categories of data referred to in Article 3(1) for non-commercial purposes, such as scientific research purposes, and by SMEs and start-ups in accordance with State aid rules. In that regard, public sector bodies may also make the data available at a discounted fee or free of charge, in particular to SMEs and start-ups, civil society and educational establishments. To that end, public sector bodies may establish a list of categories of re-users to which data for re-use is made available at a discounted fee or free of charge. That list, together with the criteria used to establish it, shall be made public.

5.   Any fees shall be derived from the costs related to conducting the procedure for requests for the re-use of the categories of data referred to in Article 3(1) and limited to the necessary costs in relation to:

(a)

the reproduction, provision and dissemination of data;

(b)

the clearance of rights;

(c)

anonymisation or other forms of preparation of personal data and commercially confidential data as provided for in Article 5(3);

(d)

the maintenance of the secure processing environment;

(e)

the acquisition of the right to allow re-use in accordance with this Chapter by third parties outside the public sector; and

(f)

assisting re-users in seeking consent from data subjects and permission from data holders whose rights and interests may be affected by such re-use.

6.   The criteria and methodology for calculating fees shall be laid down by the Member States and published. The public_sector_body shall publish a description of the main categories of costs and the rules used for the allocation of costs.

Article 12

Conditions for providing data intermediation services

The provision of data intermediation services referred in Article 10 shall be subject to the following conditions:

(a)

the data intermediation services provider shall not use the data for which it provides data intermediation services for purposes other than to put them at the disposal of data users and shall provide data intermediation services through a separate legal person;

(b)

the commercial terms, including pricing, for the provision of data intermediation services to a data holder or data user shall not be dependent upon whether the data holder or data user uses other services provided by the same data intermediation services provider or by a related entity, and if so to what degree the data holder or data user uses such other services;

(c)

the data collected with respect to any activity of a natural or legal person for the purpose of the provision of the data intermediation service, including the date, time and geolocation data, duration of activity and connections to other natural or legal persons established by the person who uses the data intermediation service, shall be used only for the development of that data intermediation service, which may entail the use of data for the detection of fraud or cybersecurity, and shall be made available to the data holders upon request;

(d)

the data intermediation services provider shall facilitate the exchange of the data in the format in which it receives it from a data subject or a data holder, 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 and shall offer an opt-out possibility regarding those conversions to data subjects or data holders, unless the conversion is mandated by Union law;

(e)

data intermediation services may include offering additional specific tools and services to data holders or data subjects for the specific purpose of facilitating the exchange of data, such as temporary storage, curation, conversion, anonymisation and pseudonymisation, such tools being used only at the explicit request or approval of the data holder or data subject and third-party tools offered in that context not being used for other purposes;

(f)

the data intermediation services provider shall ensure that the procedure for access to its service is fair, transparent and non-discriminatory for both data subjects and data holders, as well as for data users, including with regard to prices and terms of service;

(g)

the data intermediation services provider shall have procedures in place to prevent fraudulent or abusive practices in relation to parties seeking access through its data intermediation services;

(h)

the data intermediation services provider shall, in the event of its insolvency, ensure a reasonable continuity of the provision of its data intermediation services and, where such data intermediation services ensure the storage of data, shall have mechanisms in place to allow data holders and data users to obtain access to, to transfer or to retrieve their data and, where such data intermediation services are provided between data subjects and data users, to allow data subjects to exercise their rights;

(i)

the data intermediation services provider shall take appropriate measures to ensure interoperability with other data intermediation services, inter alia, by means of commonly used open standards in the sector in which the data intermediation services provider operates;

(j)

the data intermediation services provider shall put in place adequate technical, legal and organisational measures in order to prevent the transfer of or access to non-personal data that is unlawful under Union law or the national law of the relevant Member State;

(k)

the data intermediation services provider shall without delay inform data holders in the event of an unauthorised transfer, access or use of the non-personal data that it has shared;

(l)

the data intermediation services provider shall take necessary measures to ensure an appropriate level of security for the storage, processing and transmission of non-personal data, and the data intermediation services provider shall further ensure the highest level of security for the storage and transmission of competitively sensitive information;

(m)

the data intermediation services provider offering services to data subjects shall act in the data subjects’ best interest where it facilitates the exercise of their rights, in particular by informing and, where appropriate, advising data subjects in a concise, transparent, intelligible and easily accessible manner about intended data uses by data users and standard terms and conditions attached to such uses before data subjects give consent;

(n)

where a data intermediation services provider provides tools for obtaining consent from data subjects or permissions to process data made available by data holders, it shall, where relevant, specify the third-country jurisdiction in which the data use is intended to take place and provide data subjects with tools to both give and withdraw consent and data holders with tools to both give and withdraw permissions to process data;

(o)

the data intermediation services provider shall maintain a log record of the data intermediation activity.

Article 21

Specific requirements to safeguard rights and interests of data subjects and data holders with regard to their data

1.   A recognised data altruism organisation shall inform data subjects or data holders prior to any processing of their data in a clear and easily comprehensible manner of:

(a)

the objectives of general interest and, if applicable, the specified, explicit and legitimate purpose for which personal data is to be processed, and for which it permits the processing of their data by a data user;

(b)

the location of and the objectives of general interest for which it permits any processing carried out in a third country, where the processing is carried out by the recognised data altruism organisation.

2.   The recognised data altruism organisation shall not use the data for other objectives than those of general interest for which the data subject or data holder allows the processing. The recognised data altruism organisation shall not use misleading marketing practices to solicit the provision of data.

3.   The recognised data altruism organisation shall provide tools for obtaining consent from data subjects or permissions to process data made available by data holders. The recognised data altruism organisation shall also provide tools for easy withdrawal of such consent or  permission.

4.   The recognised data altruism organisation shall take measures to ensure an appropriate level of security for the storage and processing of non-personal data that it has collected based on data altruism.

5.   The recognised data altruism organisation shall, without delay, inform data holders in the event of any unauthorised transfer, access or use of the non-personal data that it has shared.

6.   Where the recognised data altruism organisation facilitates data processing by third parties, including by providing tools for obtaining consent from data subjects or permissions to process data made available by data holders, it shall, where relevant, specify the third-country jurisdiction in which the data use is intended to take place.

Article 26

Requirements relating to competent authorities

1.   The competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations shall be legally distinct from, and functionally independent of, any data intermediation services provider or recognised data altruism organisation. The functions of the competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations may be carried out by the same authority. Member States may either establish one or more new authorities for those purposes or rely on existing ones.

2.   Competent authorities for data intermediation services and competent authorities for the registration of data altruism organisations shall exercise their tasks in an impartial, transparent, consistent, reliable and timely manner. Where they exercise their tasks, they shall safeguard fair competition and non-discrimination.

3.   The top-level management and personnel responsible for carrying out the relevant tasks of the competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations shall not be the designer, manufacturer, supplier, installer, purchaser, owner, user or maintainer of the services which they evaluate, nor the authorised representative of any of those parties. This shall not preclude the use of evaluated services that are necessary for the operations of the competent authority for data intermediation services and the competent authority for the registration of data altruism organisations or the use of such services for personal purposes.

4.   The top-level management and personnel of the competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations shall not engage in any activity that may conflict with their independence of judgment or integrity in relation to evaluation activities assigned to them.

5.   The competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations shall have at their disposal the adequate financial and human resources to carry out the tasks assigned to them, including the necessary technical knowledge and resources.

6.   The competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations of a Member State shall provide the Commission and competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations from other Member States, on reasoned request and without delay, with the information necessary to carry out their tasks under this Regulation. Where a competent authority for data intermediation services or a competent authority for the registration of data altruism organisations considers the information requested to be confidential in accordance with Union and national law on commercial and professional confidentiality, the Commission and any other competent authorities for data intermediation services or competent authorities for the registration of data altruism organisations concerned shall ensure such confidentiality.

Article 29

European Data Innovation Board

1.   The Commission shall establish a European Data Innovation Board in the form of an expert group, consisting of representatives of the competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations of all Member States, the European Data Protection Board, the European Data Protection Supervisor, ENISA, the Commission, the EU SME Envoy or a representative appointed by the network of SME envoys, and other representatives of relevant bodies in specific sectors as well as bodies with specific expertise. In its appointments of individual experts, the Commission shall aim to achieve gender and geographical balance among the members of the expert group.

2.   The European Data Innovation Board shall consist of at least the following three subgroups:

(a)

a subgroup composed of the competent authorities for data intermediation services and the competent authorities for the registration of data altruism organisations, with a view to carrying out the tasks pursuant to Article 30, points (a), (c), (j) and (k);

(b)

a subgroup for technical discussions on standardisation, portability and interoperability pursuant to Article 30, points (f) and (g);

(c)

a subgroup for stakeholder involvement composed of relevant representatives from industry, research, academia, civil society, standardisation organisations, relevant common European data spaces and other relevant stakeholders and third parties advising the European Data Innovation Board on tasks pursuant to Article 30, points (d), (e), (f), (g) and (h).

3.   The Commission shall chair the meetings of the European Data Innovation Board.

4.   The European Data Innovation Board shall be assisted by a secretariat provided by the Commission.


whereas
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