Digital Governance Act 2022/0868 EN

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 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 7

Competent bodies

1. For the purpose of carrying out the tasks referred to in this Article, each Member State shall designate one or more competent bodies, which may be competent for particular sectors, to assist the public sector bodies which grant or refuse access for the re-use of the categories of data referred to in Article 3(1). Member States may either establish one or more new competent bodies or rely on existing public sector bodies or on internal services of public sector bodies that fulfil the conditions laid down in this Regulation.

2. The competent bodies may be empowered to grant access for the re-use of the categories of data referred to in Article 3(1) pursuant to Union or national law which provides for such access to be granted. Where they grant or refuse access for the re-use, Articles 4, 5, 6 and 9 shall apply to those competent bodies.

3. The competent bodies shall have adequate legal, financial, technical and human resources to carry out the tasks assigned to them, including the necessary technical knowledge to be able to comply with relevant Union or national law concerning the access regimes for the categories of data referred to in Article 3(1).

4. The assistance provided for in paragraph 1 shall include, where necessary:

(a)	providing technical support by making available a secure processing environment for providing access for the re-use of data;

(b)	providing guidance and technical support on how to best structure and store data to make that data easily accessible;

(c)

providing technical support for pseudonymisation and ensuring data processing in a manner that effectively preserves the privacy, confidentiality, integrity and accessibility of the information contained in the data for which re-use is allowed, including techniques for the anonymisation, generalisation, suppression and randomisation of personal data or other state-of-the-art privacy-preserving methods, and the deletion of commercially confidential information, including trade secrets or content protected by intellectual property rights;

(d)

assisting the public sector bodies, where relevant, to provide support to re-users in requesting consent for re-use from data subjects or permission from data holders in line with their specific decisions, including on the jurisdiction in which the data processing is intended to take place and assisting the public sector bodies in establishing technical mechanisms that allow the transmission of requests for consent or permission from re-users, where practically feasible;

(e)	providing public sector bodies with assistance in assessing the adequacy of contractual commitments made by a re-user pursuant to Article 5(10).

5. Each Member State shall notify the Commission of the identity of the competent bodies designated pursuant to paragraph 1 by 24 September 2023. Each Member State shall also notify the Commission of any subsequent change to the identity of those competent bodies.

Article 11

Notification by data intermediation services providers

1. Any data intermediation services provider who intends to provide the data intermediation services referred to in Article 10 shall submit a notification to the competent authority for data intermediation services.

2. For the purposes of this Regulation, a data intermediation services provider 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, without prejudice to Union law regulating cross-border actions for damages and related proceedings.

3. A data intermediation services provider that is not established in the Union, but which offers the data intermediation services referred to in Article 10 within the Union, shall designate a legal_representative in one of the Member States in which those services are offered.

For the purpose of ensuring compliance with this Regulation, the legal_representative shall be mandated by the data intermediation services provider to be addressed in addition to or instead of it by competent authorities for data intermediation services or data subjects and data holders, with regard to all issues related to the data intermediation services provided. The legal_representative shall cooperate with and comprehensively demonstrate to the competent authorities for data intermediation services, upon request, the actions taken and provisions put in place by the data intermediation services provider to ensure compliance with this Regulation.

The data intermediation services provider shall be deemed to be under the jurisdiction of the Member State in which the legal_representative is located. The designation of a legal_representative by the data intermediation services provider shall be without prejudice to any legal actions which could be initiated against the data intermediation services provider.

4. After having submitted a notification in accordance with paragraph 1, the data intermediation services provider may start the activity subject to the conditions laid down in this Chapter.

5. The notification referred to in paragraph 1 shall entitle the data intermediation services provider to provide data intermediation services in all Member States.

6. The notification referred to in paragraph 1 shall include the following information:

(a)	the name of the data intermediation services provider;

(b)	the data intermediation services provider’s legal status, form, ownership structure, relevant subsidiaries and, where the data intermediation services provider is registered in a trade or other similar public national register, registration number;

(c)	the address of the data intermediation services provider’s main_establishment in the Union, if any, and, where applicable, of any secondary branch in another Member State or that of the legal_representative;

(d)	a public website where complete and up-to-date information on the data intermediation services provider and the activities can be found, including as a minimum the information referred to in points (a), (b), (c) and (f);

(e)	the data intermediation services provider’s contact persons and contact details;

(f)	a description of the data intermediation service the data intermediation services provider intends to provide, and an indication of the categories listed in Article 10 under which such data intermediation service falls;

(g)	the estimated date for starting the activity, if different from the date of the notification.

7. The competent authority for data intermediation services shall ensure that the notification procedure is non-discriminatory and does not distort the competition.

8. At the request of the data intermediation services provider, the competent authority for data intermediation services shall, within one week of a duly and fully completed notification, issue a standardised declaration, confirming that the data intermediation services provider has submitted the notification referred to in paragraph 1 and that the notification contains the information referred to in paragraph 6.

9. At the request of the data intermediation services provider, the competent authority for data intermediation services shall confirm that the data intermediation services provider complies with this Article and Article 12. Upon receipt of such a confirmation, that data intermediation services provider may use the label ‘ data intermediation services provider recognised in the Union’ in its written and spoken communication, as well as a common logo.

In order to ensure that data intermediation services providers recognised in the Union are easily identifiable throughout the Union, the Commission shall, by means of implementing acts, establish a design for the common logo. Data intermediation services providers recognised in the Union shall display the common logo clearly on every online and offline publication that relates to their data intermediation activities.

Those implementing acts shall be adopted in accordance with the advisory procedure referred to in Article 33(2).

10. The competent authority for data intermediation services shall notify the Commission of each new notification by electronic means without delay. The Commission shall keep and regularly update a public register of all data intermediation services providers providing their services in the Union. The information referred to in paragraph 6, points (a), (b), (c), (d), (f) and (g), shall be published in the public register.

11. The competent authority for data intermediation services may charge fees for the notification in accordance with national law. Such fees shall be proportionate and objective and be based on the administrative costs related to the monitoring of compliance and other market control activities of the competent authority for data intermediation services in relation to notifications of data intermediation services providers. In the case of SMEs and start-ups, the competent authority for data intermediation services may charge a discounted fee or waive the fee.

12. Data intermediation services providers shall notify the competent authority for data intermediation services of any changes to the information provided pursuant to paragraph 6 within 14 days of the date of the change.

13. Where a data intermediation services provider ceases its activities, it shall notify the relevant competent authority for data intermediation services determined pursuant to paragraphs 1, 2 and 3 within 15 days.

14. The competent authority for data intermediation services shall notify the Commission of each notification referred to in paragraphs 12 and 13 by electronic means without delay. The Commission shall update the public register of the data intermediation services providers in the Union accordingly.

Article 14

Monitoring of compliance

1. The competent authorities for data intermediation services shall monitor and supervise compliance of data intermediation services providers with the requirements of this Chapter. The competent authorities for data intermediation services may also monitor and supervise the compliance of data intermediation services providers, on the basis of a request by a natural or legal person.

2. The competent authorities for data intermediation services shall have the power to request from data intermediation services providers or their legal_representatives all the information that is necessary to verify compliance with the requirements of this Chapter. Any request for information shall be proportionate to the performance of the task and shall be reasoned.

3. Where the competent authority for data intermediation services finds that a data intermediation services provider does not comply with one or more of the requirements of this Chapter, it shall notify that data intermediation services provider of those findings and give it the opportunity to state its views, within 30 days of the receipt of the notification.

4. The competent authority for data intermediation services shall have the power to require the cessation of the infringement referred to in paragraph 3 within a reasonable time limit or immediately in the case of a serious infringement and shall take appropriate and proportionate measures with the aim of ensuring compliance. In that regard, the competent authority for data intermediation services shall have the power, where appropriate:

(a)	to impose, through administrative procedures, dissuasive financial penalties, which may include periodic penalties and penalties with retroactive effect, to initiate legal proceedings for the imposition of fines, or both;

(b)	to require a postponement of the commencement or a suspension of the provision of the data intermediation service until any changes to the conditions requested by the competent authority for data intermediation services have been made; or

(c)	to require the cessation of the provision of the data intermediation service in the event that serious or repeated infringements have not been remedied despite prior notification in accordance with paragraph 3.

The competent authority for data intermediation services shall request the Commission to remove the data intermediation services provider from the register of data intermediation services providers once it has ordered the cessation of the provision of the data intermediation service in accordance with the first subparagraph, point (c).

If a data intermediation services provider remedies infringements, that data intermediation services provider shall re-notify the competent authority for data intermediation services. The competent authority for data intermediation services shall notify the Commission of each new re-notification.

5. Where a data intermediation services provider that is not established in the Union fails to designate a legal_representative or the legal_representative fails, upon request of the competent authority for data intermediation services, to provide the necessary information that comprehensively demonstrates compliance with this Regulation, the competent authority for data intermediation services shall have the power to postpone the commencement of or to suspend the provision of the data intermediation service until the legal_representative is designated or the necessary information is provided.

6. The competent authorities for data intermediation services shall notify the data intermediation services provider concerned of the measures imposed pursuant to paragraphs 4 and 5 and the reasons on which they are based, as well as the necessary steps to be taken to rectify the relevant shortcomings, without delay, and shall stipulate a reasonable period, which shall not be longer than 30 days, for the data intermediation services provider to comply with those measures.

7. If a data intermediation services provider has its main_establishment or its legal_representative in a Member State but provides services in other Member States, the competent authority for data intermediation services of the Member State of the main_establishment or where the legal_representative is located and the competent authorities for data intermediation services of those other Member States shall cooperate and assist each other. Such assistance and cooperation may cover information exchanges between the competent authorities for data intermediation services concerned for the purposes of their tasks under this Regulation and reasoned requests to take the measures referred to in this Article.

Where a competent authority for data intermediation services in one Member State requests assistance from a competent authority for data intermediation services in another Member State, it shall submit a reasoned request. The competent authority for data intermediation services shall, upon such a request, provide a response without delay and within a timeframe proportionate to the urgency of the request.

Any information exchanged in the context of assistance requested and provided under this paragraph shall be used only in respect of the matter for which it was requested.

Article 18

General requirements for registration

In order to qualify for registration in a public national register of recognised data altruism organisations, an entity shall:

(a)	carry out data altruism activities;

(b)	be a legal person established pursuant to national law to meet objectives of general interest as provided for in national law, where applicable;

(c)	operate on a not-for-profit basis and be legally independent from any entity that operates on a for-profit basis;

(d)	carry out its data altruism activities through a structure that is functionally separate from its other activities;

(e)	comply with the rulebook referred to Article 22(1), at the latest 18 months after the date of entry into force of the delegated acts referred to in that paragraph.

Article 19

Registration of recognised data altruism organisations

1. An entity which meets the requirements of Article 18 may submit an application for registration in the public national register of recognised data altruism organisations in the Member State in which it is established.

2. An entity which meets the requirements of Article 18 and has establishments in more than one Member State may submit an application for registration in the public national register of recognised data altruism organisations in the Member State in which it has its main_establishment.

3. An entity which meets the requirements of Article 18 but which is not established in the Union shall designate a legal_representative in one of the Member States in which the data altruism services are offered.

For the purpose of ensuring compliance with this Regulation, the legal_representative shall be mandated by the entity to be addressed in addition to or instead of it by competent authorities for the registration of data altruism organisations or data subjects and data holders, with regard to all issues related to that entity. The legal_representative shall cooperate with and comprehensively demonstrate to the competent authorities for the registration of data altruism organisations, upon request, the actions taken and provisions put in place by the entity to ensure compliance with this Regulation.

The entity shall be deemed to be under the jurisdiction of the Member State in which the legal_representative is located. Such an entity may submit an application for registration in the public national register of recognised data altruism organisations in that Member State. The designation of a legal_representative by the entity shall be without prejudice to any legal actions which could be initiated against the entity.

4. Applications for registration referred to in paragraphs 1, 2 and 3 shall contain the following information:

(a)	the name of the entity;

(b)	the entity’s legal status, form and, where the entity is registered in a public national register, registration number;

(c)	the statutes of the entity, where appropriate;

(d)	the entity’s sources of income;

(e)	the address of the entity’s main_establishment in the Union, if any, and, where applicable, any secondary branch in another Member State or that of the legal_representative;

(f)	a public website where complete and up-to-date information on the entity and the activities can be found, including as a minimum the information referred to in points (a), (b), (d), (e) and (h);

(g)	the entity’s contact persons and contact details;

(h)	the objectives of general interest it intends to promote when collecting data;

(i)	the nature of the data that the entity intends to control or process, and, in the case of personal data, an indication of the categories of personal data;

(j)	any other documents which demonstrate that the requirements of Article 18 are met.

5. Where the entity has submitted all necessary information pursuant to paragraph 4 and after the competent authority for the registration of data altruism organisations has evaluated the application for registration and found that the entity complies with the requirements of Article 18, it shall register the entity in the public national register of recognised data altruism organisations within 12 weeks after the receipt of the application for registration. The registration shall be valid in all Member States.

The competent authority for the registration of data altruism organisations shall notify the Commission of any registration. The Commission shall include that registration in the public Union register of recognised data altruism organisations.

6. The information referred to in paragraph 4, points (a), (b), (f), (g) and (h), shall be published in the relevant public national register of recognised data altruism organisations.

7. A recognised data altruism organisation shall notify the relevant competent authority for the registration of data altruism organisations of any changes to the information provided pursuant to paragraph 4 within 14 days of the date of the change.

The competent authority for the registration of data altruism organisations shall notify the Commission of each such notification by electronic means without delay. Based on such a notification, the Commission shall update the public Union register of recognised data altruism organisations without delay.

Article 28

Right to an effective judicial remedy

1. Notwithstanding any administrative or other non-judicial remedies, any affected natural and legal persons shall have the right to an effective judicial remedy with regard to legally binding decisions referred to in Article 14 taken by the competent authorities for data intermediation services in the management, control and enforcement of the notification regime for data intermediation services providers and legally binding decisions referred to in Articles 19 and 24 taken by the competent authorities for the registration of data altruism organisations in the monitoring of recognised data altruism organisations.

2. Proceedings pursuant to this Article shall be brought before the courts or tribunals of the Member State of the competent authority for data intermediation services or the competent authority for the registration of data altruism organisations against which the judicial remedy is sought individually or, where relevant, collectively by the representatives of one or more natural or legal persons.

3. Where a competent authority for data intermediation services or a competent authority for the registration of data altruism organisations fails to act on a complaint, any affected natural and legal persons shall, in accordance with national law, either have the right to an effective judicial remedy or access to review by an impartial body with the appropriate expertise.

CHAPTER VI

European Data Innovation Board

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.

Article 32

Exercise of the delegation

1. The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2. The power to adopt delegated acts referred to in Article 5(13) and Article 22(1) shall be conferred on the Commission for an indeterminate period of time from 23 June 2022.

3. The delegation of power referred to in Article 5(13) and Article 22(1) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4. Before adopting a delegated act, the Commission shall consult experts designated by each Member State in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making.

5. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

6. A delegated act adopted pursuant to Article 5(13) or Article 22(1) shall enter into force only if no objection has been expressed either by the European Parliament or by the Council within a period of three months of notification of that act to the European Parliament and to the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by three months at the initiative of the European Parliament or of the Council.

Article 34

Penalties

1. Member States shall lay down the rules on penalties applicable to infringements of the obligations regarding transfers of non-personal data to third countries pursuant to Article 5(14) and Article 31, the notification obligation of data intermediation services providers pursuant to Article 11, the conditions for providing data intermediation services pursuant to Article 12 and the conditions for the registration as a recognised data altruism organisation pursuant to Articles 18, 20, 21 and 22, and shall take all measures necessary to ensure that they are implemented. The penalties provided for shall be effective, proportionate and dissuasive. In their rules on penalties, Member States shall take into account the recommendations of the European Data Innovation Board. Member States shall, by 24 September 2023, notify the Commission of those rules and of those measures and shall notify it, without delay, of any subsequent amendment affecting them.

2. Member States shall take into account the following non-exhaustive and indicative criteria for the imposition of penalties on data intermediation services providers and recognised data altruism organisations for infringements of this Regulation, where appropriate:

(a)	the nature, gravity, scale and duration of the infringement;

(b)	any action taken by the data intermediation services provider or recognised data altruism organisation to mitigate or remedy the damage caused by the infringement;

(c)	any previous infringements by the data intermediation services provider or recognised data altruism organisation;

(d)	the financial benefits gained or losses avoided by the data intermediation services provider or recognised data altruism organisation due to the infringement, insofar as such benefits or losses can be reliably established;

(e)	any other aggravating or mitigating factors applicable to the circumstances of the case.

Article 35

Evaluation and review

By 24 September 2025, the Commission shall carry out an evaluation of this Regulation and 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. The report shall be accompanied, where necessary, by legislative proposals.

The report shall assess, in particular:

(a)	the application and functioning of the rules on penalties laid down by the Member States pursuant to Article 34;

(b)	the level of compliance of the legal_representatives of data intermediation services providers and recognised data altruism organisations that are not established in the Union with this Regulation and the level of enforceability of penalties imposed on those providers and organisations;

(c)	the type of data altruism organisations registered under Chapter IV and an overview of the objectives of general interests for which data are shared in view of establishing clear criteria in that respect.

Member States shall provide the Commission with the information necessary for the preparation of that report.

whereas

keyboard_tab Digital Governance Act 2022/0868 EN

Digital Governance Act 2022/0868 EN