Regulation (EU) 2023/2854 — Article 35

Article total: 3 parts · 0 Council drafts · 3 Parliament amendments

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Alternative wording Amendment 273 IMCO

16a. In Article 35, paragraph 5 is amended as follows:

5. The Commission may, by means of implementing acts, adopt common specifications based on open interoperability specifications covering all of the essential requirements laid down in paragraphs 1 and 2 only where no harmonised standard or standards covering the relevant requirements are available, no standardisation work covering those requirements is ongoing, and the relevant European standardisation organisations have formally refused the request to develop harmonised standards. Before adopting common specifications, the Commission shall demonstrate, on the basis of a public technical and economic assessment, that they are strictly necessary, technically and economically feasible, and proportionate. Any common specifications adopted pursuant to this paragraph shall not go beyond the essential requirements laid down in paragraphs 1 and 2 and shall not impose additional technical design, architectural, operational or commercial obligations."

Justification

This amendment prevents the Data Act from becoming an outlier in EU law by allowing Commission-mandated common specifications without a prior standardisation process. In line with better law-making, proportionality and market-driven standardisation, common specifications must remain a last-resort tool, based on evidence and feasibility, not a shortcut for politically imposed technical solutions or new obligations beyond the Regulation’s essential requirements.

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Article 35

Interoperability of data processing services

1.
Open interoperability specifications and harmonised standards for the interoperability of data processing services shall:
1. (a)
  
  achieve, where technically feasible, interoperability between different data processing services that cover the same service type;
2. (b)
  
  enhance portability of digital assets between different data processing services that cover the same service type;
3. (c)
  
  facilitate, where technically feasible, functional equivalence between different data processing services referred to in Article 30(1) that cover the same service type;
4. (d)
  
  not have an adverse impact on the security and integrity of data processing services and data;
5. (e)
  
  be designed in such a way so as to allow for technical advances and the inclusion of new functions and innovation in data processing services.
2.
Open interoperability specifications and harmonised standards for the interoperability of data processing services shall adequately address:
1. (a)
  
  the cloud interoperability aspects of transport interoperability, syntactic interoperability, semantic data interoperability, behavioural interoperability and policy interoperability;
2. (b)
  
  the cloud data portability aspects of data syntactic portability, data semantic portability and data policy portability;
3. (c)
  
  the cloud application aspects of application syntactic portability, application instruction portability, application metadata portability, application behaviour portability and application policy portability.
3.

Open interoperability specifications shall comply with Annex II to Regulation (EU) No 1025/2012.
4.

After taking into account relevant international and European standards and self-regulatory initiatives, the Commission may, in accordance with Article 10(1) of Regulation (EU) No 1025/2012, request one or more European standardisation organisations to draft harmonised standards that satisfy the essential requirements laid down in paragraphs 1 and 2 of this Article.
5.

The Commission may, by means of implementing acts, adopt common specifications based on open interoperability specifications covering all of the essential requirements laid down in paragraphs 1 and 2 only where no harmonised standard or standards covering the relevant requirements are available, no standardisation work covering those requirements is ongoing, and the relevant European standardisation organisations have formally refused the request to develop harmonised standards. Before adopting common specifications, the Commission shall demonstrate, on the basis of a public technical and economic assessment, that they are strictly necessary, technically and economically feasible, and proportionate. Any common specifications adopted pursuant to this paragraph shall not go beyond the essential requirements laid down in paragraphs 1 and 2 and shall not impose additional technical design, architectural, operational or commercial obligations."
6.

When preparing the draft implementing act referred to in paragraph 5 of this Article, the Commission shall take into account the views of the relevant competent authorities referred to in Article 37(5), point (h) and other relevant bodies or expert groups and shall duly consult all relevant stakeholders.
7.

When a Member State considers that a common specification does not entirely satisfy the essential requirements laid down in paragraphs 1 and 2, it shall inform the Commission thereof by submitting a detailed explanation. The Commission shall assess that detailed explanation and may, if appropriate, amend the implementing act establishing the common specification in question.
8.

For the purpose of Article 30(3), the Commission shall, by means of implementing acts, publish the references of harmonised standards and common specifications for the interoperability of data processing services in a central Union standards repository for the interoperability of data processing services.
9.

The implementing acts referred to in this Article shall be adopted in accordance with the examination procedure referred to in Article 46(2).

Alternative wording Amendment 274 IMCO

16b. In Article 35, paragraph 8 is amended as follows:

8. For the purpose of Article 30(3), the Commission ~~shall~~may, by means of implementing acts, publish the references of harmonised standards and common specifications for the interoperability of data processing services in a central Union standards repository for the interoperability of data processing services. References to common specifications shall not be published unless those common specifications have been adopted in accordance with paragraph 5 and 6. Without prejudice to the publication of references to harmonised standards developed pursuant to Regulation (EU) No 1025/2012, the Commission shall not select or publish any reference where doing so would disproportionately favour a specific provider, group of providers, technical stack, architecture or business model, or impose unnecessary migration, re-engineering or compliance costs where less disruptive alternatives are available."

Justification

As per changes to Article 35 - paragraph 5 and to ensure that open interoperability specifications, as well as common specifications are not used to distort the competition.

Preview
against:

Article 35

Interoperability of data processing services

1.
Open interoperability specifications and harmonised standards for the interoperability of data processing services shall:
1. (a)
  
  achieve, where technically feasible, interoperability between different data processing services that cover the same service type;
2. (b)
  
  enhance portability of digital assets between different data processing services that cover the same service type;
3. (c)
  
  facilitate, where technically feasible, functional equivalence between different data processing services referred to in Article 30(1) that cover the same service type;
4. (d)
  
  not have an adverse impact on the security and integrity of data processing services and data;
5. (e)
  
  be designed in such a way so as to allow for technical advances and the inclusion of new functions and innovation in data processing services.
2.
Open interoperability specifications and harmonised standards for the interoperability of data processing services shall adequately address:
1. (a)
  
  the cloud interoperability aspects of transport interoperability, syntactic interoperability, semantic data interoperability, behavioural interoperability and policy interoperability;
2. (b)
  
  the cloud data portability aspects of data syntactic portability, data semantic portability and data policy portability;
3. (c)
  
  the cloud application aspects of application syntactic portability, application instruction portability, application metadata portability, application behaviour portability and application policy portability.
3.

Open interoperability specifications shall comply with Annex II to Regulation (EU) No 1025/2012.
4.

After taking into account relevant international and European standards and self-regulatory initiatives, the Commission may, in accordance with Article 10(1) of Regulation (EU) No 1025/2012, request one or more European standardisation organisations to draft harmonised standards that satisfy the essential requirements laid down in paragraphs 1 and 2 of this Article.
5.

The Commission may, by means of implementing acts, adopt common specifications based on open interoperability specifications covering all of the essential requirements laid down in paragraphs 1 and 2.
6.

When preparing the draft implementing act referred to in paragraph 5 of this Article, the Commission shall take into account the views of the relevant competent authorities referred to in Article 37(5), point (h) and other relevant bodies or expert groups and shall duly consult all relevant stakeholders.
7.

When a Member State considers that a common specification does not entirely satisfy the essential requirements laid down in paragraphs 1 and 2, it shall inform the Commission thereof by submitting a detailed explanation. The Commission shall assess that detailed explanation and may, if appropriate, amend the implementing act establishing the common specification in question.
8.

For the purpose of Article 30(3), the Commission ~~shall~~may, by means of implementing acts, publish the references of harmonised standards and common specifications for the interoperability of data processing services in a central Union standards repository for the interoperability of data processing services. References to common specifications shall not be published unless those common specifications have been adopted in accordance with paragraph 5 and 6.
Without prejudice to the publication of references to harmonised standards developed pursuant to Regulation (EU) No 1025/2012, the Commission shall not select or publish any reference where doing so would disproportionately favour a specific provider, group of providers, technical stack, architecture or business model, or impose unnecessary migration, re-engineering or compliance costs where less disruptive alternatives are available."
9.

The implementing acts referred to in this Article shall be adopted in accordance with the examination procedure referred to in Article 46(2).

Additional proposed wording Amendment 275 IMCO

In Article 35, the following paragraphs are inserted

8a.

Before publishing any reference pursuant to paragraph 8, the Commission shall publish a notice identifying the exact version of the harmonised standard, common specification or open interoperability specification concerned, the data processing services covered, the expected legal effects under Article 30(3), and the rules applicable to revision, update, withdrawal, equivalence of versions, and the admission of alternative specifications or standards. The Commission shall consult data processing service providers, customers, relevant European and international standardisation bodies, and, where applicable, the organisation responsible for developing or maintaining the relevant open interoperability specification.

8b.

The Commission shall publish, together with the implementing act referred to in paragraph 8, a summary of the consultation, the reasons for selecting the relevant reference, the assessment of available or possible alternatives, and the identity of any external contractors, including individuals managing the process, experts or organisations materially involved in the assessment, selection or preparation of the reference. Any substantive communication between the Commission, such contractors, experts or organisations, and the organisation responsible for developing or maintaining the relevant open interoperability specification shall be documented and made public, without prejudice to the protection of confidential business information and personal data.

Justification

This amendment establishes clear governance and transparency safeguards for the central Union standards repository without duplicating the substantive conditions in Article 35(5). It ensures that references added to the repository are version-specific, scope-limited and subject to stakeholder scrutiny. It also prevents opaque preparation of common specifications through external consultants or privileged informal channels, reducing risks of regulatory capture and ensuring equal access, market trust and better law-making.

Preview
against:

Article 35

Interoperability of data processing services

1.
Open interoperability specifications and harmonised standards for the interoperability of data processing services shall:
1. (a)
  
  achieve, where technically feasible, interoperability between different data processing services that cover the same service type;
2. (b)
  
  enhance portability of digital assets between different data processing services that cover the same service type;
3. (c)
  
  facilitate, where technically feasible, functional equivalence between different data processing services referred to in Article 30(1) that cover the same service type;
4. (d)
  
  not have an adverse impact on the security and integrity of data processing services and data;
5. (e)
  
  be designed in such a way so as to allow for technical advances and the inclusion of new functions and innovation in data processing services.
2.
Open interoperability specifications and harmonised standards for the interoperability of data processing services shall adequately address:
1. (a)
  
  the cloud interoperability aspects of transport interoperability, syntactic interoperability, semantic data interoperability, behavioural interoperability and policy interoperability;
2. (b)
  
  the cloud data portability aspects of data syntactic portability, data semantic portability and data policy portability;
3. (c)
  
  the cloud application aspects of application syntactic portability, application instruction portability, application metadata portability, application behaviour portability and application policy portability.
3.

Open interoperability specifications shall comply with Annex II to Regulation (EU) No 1025/2012.
4.

After taking into account relevant international and European standards and self-regulatory initiatives, the Commission may, in accordance with Article 10(1) of Regulation (EU) No 1025/2012, request one or more European standardisation organisations to draft harmonised standards that satisfy the essential requirements laid down in paragraphs 1 and 2 of this Article.
5.

The Commission may, by means of implementing acts, adopt common specifications based on open interoperability specifications covering all of the essential requirements laid down in paragraphs 1 and 2.
6.

When preparing the draft implementing act referred to in paragraph 5 of this Article, the Commission shall take into account the views of the relevant competent authorities referred to in Article 37(5), point (h) and other relevant bodies or expert groups and shall duly consult all relevant stakeholders.
7.

When a Member State considers that a common specification does not entirely satisfy the essential requirements laid down in paragraphs 1 and 2, it shall inform the Commission thereof by submitting a detailed explanation. The Commission shall assess that detailed explanation and may, if appropriate, amend the implementing act establishing the common specification in question.
8.

For the purpose of Article 30(3), the Commission shall, by means of implementing acts, publish the references of harmonised standards and common specifications for the interoperability of data processing services in a central Union standards repository for the interoperability of data processing services.
8a.
Before publishing any reference pursuant to paragraph 8, the Commission shall publish a notice identifying the exact version of the harmonised standard, common specification or open interoperability specification concerned, the data processing services covered, the expected legal effects under Article 30(3), and the rules applicable to revision, update, withdrawal, equivalence of versions, and the admission of alternative specifications or standards. The Commission shall consult data processing service providers, customers, relevant European and international standardisation bodies, and, where applicable, the organisation responsible for developing or maintaining the relevant open interoperability specification.
1. 8b.
  
  The Commission shall publish, together with the implementing act referred to in paragraph 8, a summary of the consultation, the reasons for selecting the relevant reference, the assessment of available or possible alternatives, and the identity of any external contractors, including individuals managing the process, experts or organisations materially involved in the assessment, selection or preparation of the reference. Any substantive communication between the Commission, such contractors, experts or organisations, and the organisation responsible for developing or maintaining the relevant open interoperability specification shall be documented and made public, without prejudice to the protection of confidential business information and personal data.
9.

The implementing acts referred to in this Article shall be adopted in accordance with the examination procedure referred to in Article 46(2).

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Article 35 – paragraph 5

Wording reproduced in the amendment → Amendment 273 · IMCO amendments 125–328 to the draft opinion

Changes in context

16a. In Article 35, paragraph 5 is amended as follows: 5. The Commission may, by means of implementing acts, adopt common specifications based on open interoperability specifications covering all of the essential requirements laid down in paragraphs 1 and 2 only where no harmonised standard or standards covering the relevant requirements are available, no standardisation work covering those requirements is ongoing, and the relevant European standardisation organisations have formally refused the request to develop harmonised standards. Before adopting common specifications, the Commission shall demonstrate, on the basis of a public technical and economic assessment, that they are strictly necessary, technically and economically feasible, and proportionate. Any common specifications adopted pursuant to this paragraph shall not go beyond the essential requirements laid down in paragraphs 1 and 2 and shall not impose additional technical design, architectural, operational or commercial obligations."

RemovedAdded

Both texts in full

Wording reproduced in the amendment

Amendment 273 · IMCO amendments 125–328 to the draft opinion

Open official source ↗

Article 35 – paragraph 8

Wording reproduced in the amendment → Amendment 274 · IMCO amendments 125–328 to the draft opinion

Changes in context

16b. In Article 35, paragraph 8 is amended as follows: 8. For the purpose of Article 30(3), the Commission ~~shall~~may, by means of implementing acts, publish the references of harmonised standards and common specifications for the interoperability of data processing services in a central Union standards repository for the interoperability of data processing services. References to common specifications shall not be published unless those common specifications have been adopted in accordance with paragraph 5 and 6. Without prejudice to the publication of references to harmonised standards developed pursuant to Regulation (EU) No 1025/2012, the Commission shall not select or publish any reference where doing so would disproportionately favour a specific provider, group of providers, technical stack, architecture or business model, or impose unnecessary migration, re-engineering or compliance costs where less disruptive alternatives are available."

RemovedAdded

Both texts in full

Wording reproduced in the amendment

8. For the purpose of Article 30(3), the Commission shall, by means of implementing acts, publish the references of harmonised standards and common specifications for the interoperability of data processing services in a central Union standards repository for the interoperability of data processing services.

Amendment 274 · IMCO amendments 125–328 to the draft opinion

16b. In Article 35, paragraph 8 is amended as follows: 8. For the purpose of Article 30(3), the Commission may, by means of implementing acts, publish the references of harmonised standards and common specifications for the interoperability of data processing services in a central Union standards repository for the interoperability of data processing services. References to common specifications shall not be published unless those common specifications have been adopted in accordance with paragraph 5 and 6. Without prejudice to the publication of references to harmonised standards developed pursuant to Regulation (EU) No 1025/2012, the Commission shall not select or publish any reference where doing so would disproportionately favour a specific provider, group of providers, technical stack, architecture or business model, or impose unnecessary migration, re-engineering or compliance costs where less disruptive alternatives are available."

Open official source ↗