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Digital Omnibus tracker

Data Act · Regulation (EU) 2023/2854

Article 38

Compare the available Commission, Council and Parliament texts and amendments affecting this article.

Article total: 7 parts · 3 Council drafts · 8 Parliament amendments

Removed wording is struck through; added or replacement wording is highlighted.

Institutional text

European Commission proposal

All Commission’s changes to Data Act

The wording proposed by the Commission at the start of this legislative file.

Full article with Commission changes

Article with proposed changes

Official consolidated text dated 13 December 2023, with the Commission proposal change affecting this article applied.

Article 38

Right to lodge a complaint

  1. 1.

    ‘Without prejudice to any other administrative or judicial remedy, natural and legal persons shall have the right to lodge a complaint, individually or, where relevant, collectively, with the relevant competent authority in the Member State of their habitual residence, place of work or establishment if they consider that their rights under this Regulation have been infringed. The data coordinator shall, upon request, provide all the necessary information to natural and legal persons for the lodging of their complaints with the appropriate competent authority.:

    1. (a)

      with the relevant competent authority in the Member State of their habitual residence, place of work or establishment if they consider that their rights under this Regulation have been infringed;

    2. (b)

      any matter falling within the scope of this Regulation specifically against a recognised data intermediation services provider or a recognised data altruism organisation, with the relevant competent authority for the registration of data intermediation services or the relevant competent authority for the registration of data altruism organisations.

  2. 2.

    The data coordinator shall, upon request, provide all the necessary information to natural and legal persons for the lodging of their complaints with the appropriate competent authority with which the complaint has been lodged shall inform the complainant, in accordance with national law, of the progress of the proceedings and of the decision taken.

  3. 3.

    CompetentThe authoritiescompetent authority with which the complaint has been lodged shall cooperateinform tothe handle and resolve complaints effectively andcomplainant, in aaccordance timelywith mannernational law, including by exchanging all relevant information by electronic means, without undue delay. This cooperation shall not affect the cooperation mechanisms provided for by Chapters VI and VII of Regulation (EU) 2016/679 and by Regulation (EU) 2017/2394.:

    1. (a)

      the progress of the proceedings, of the decision taken; and

    2. (b)

      the judicial remedies provided for in Article 39.

Commission source wording and instructions

Article 38

Commission proposal

(1) Without prejudice to any other administrative or judicial remedy, natural and legal persons shall have the right to lodge a complaint, individually or, where relevant, collectively: (a) with the relevant competent authority in the Member State of their habitual residence, place of work or establishment if they consider that their rights under this Regulation have been infringed; (b) any matter falling within the scope of this Regulation specifically against a recognised data intermediation services provider or a recognised data altruism organisation, with the relevant competent authority for the registration of data intermediation services or the relevant competent authority for the registration of data altruism organisations. (2) The data coordinator shall, upon request, provide all the necessary information to natural and legal persons for the lodging of their complaints with the appropriate competent authority. (3) The competent authority with which the complaint has been lodged shall inform the complainant, in accordance with national law, of: (a) the progress of the proceedings, of the decision taken; and (b) the judicial remedies provided for in Article 39.

Institutional text

Council Presidency texts

Successive Presidency compromise texts. Their inclusion does not imply agreement or adoption.

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Article 38

June Presidency compromise · 10 June

(1) Without prejudice to any other administrative or judicial remedy, natural and legal persons shall have the right to lodge a complaint, individually or, where relevant, collectively: (a) with the relevant competent authority in the Member State of their habitual residence, place of work or establishment if they consider that their rights under this Regulation have been infringed; (b) any matter falling within the scope of this Regulation specifically against a recognised data intermediation services provider or a recognised data altruism organisation, with the relevant competent authority for the registration of data intermediation services or the relevant competent authority for the registration of data altruism organisations. (2) The data coordinator shall, upon request, provide all the necessary information to natural and legal persons for the lodging of their complaints with the appropriate competent authority. (3) The competent authority with which the complaint has been lodged shall inform the complainant, in accordance with national law, of: (a) the progress of the proceedings, of the decision taken; and (b) the judicial remedies provided for in Article 39.

Competing proposals

European Parliament amendments

These are alternative tabled amendments. An amendment affecting several tracked parts appears once here, with each target identified.

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Political group at the amendment date where available; otherwise the current Parliament affiliation.

Additional proposed wording Amendment 37 ITRE–LIBE draft report · Aura Salla and Marina Kaljurand (rapporteurs)
(3a)

Competent authorities shall cooperate to handle and resolve complaints effectively and in a timely manner, including by exchanging all relevant information by electronic means, without undue delay. This cooperation shall not affect the cooperation mechanisms provided for by Chapters VI and VII of Regulation (EU) 2016/679 and by Regulation (EU) 2017/2394.

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Remove proposed wording Amendment 61 JURI draft opinion · Brando Benifei (rapporteur)

The source names this article, but its precise target scope has not been resolved. Related tracker provisions are not asserted as direct targets.

Article 38

19. Article 38 is replaced by the following: (1) Without prejudice to any other administrative or judicial remedy, natural and legal persons shall have the right to lodge a complaint, individually or, where relevant, collectively: (a) with the relevant competent authority in the Member State of their habitual residence, place of work or establishment if they consider that their rights under this Regulation have been infringed; (b) any matter falling within the scope of this Regulation specifically against a recognised data intermediation services provider or a recognised data altruism organisation, with the relevant competent authority for the registration of data intermediation services or the relevant competent authority for the registration of data altruism organisations. (2) The data coordinator shall, upon request, provide all the necessary information to natural and legal persons for the lodging of their complaints with the appropriate competent authority. (3) The competent authority with which the complaint has been lodged shall inform the complainant, in accordance with national law, of: (a) the progress of the proceedings, of the decision taken; and (b) the judicial remedies provided for in Article 39.’;
Justification

This amendment re-inserts Article 38(4) of the current Data Act in order to preserve stronger cooperation and information-exchange mechanisms between competent authorities when handling complaints. It improves legal certainty, supports coherent cross-border enforcement and reduces the risk of procedural fragmentation or future disputes.

Official source ↗
Source identification

Header printed in the source: Article 1 – paragraph 1 – point 19 / Regulation (EU) 2023/2854 / Article 38

Deletion marker printed in the source: deleted

Alternative wording Amendment 868 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
(a) with the relevant competent authority in the Member State of their habitual residence, place of work or establishment if they consider that their rights or obligations under this Regulation have been infringed;
Justification

Important to ensure users can bring complaints if a data holder infringe their obligations affecting them

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Official source ↗
Source identification

Header printed in the source: Article 1 – paragraph 1 – point 19 / Regulation (EU) 2023/2854 / Article 38 – paragraph 1 – point a

Alternative wording Amendment 869 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
(3) The competent authority with which the complaint has been lodged shall inform the complainant, in accordance with national law, in a timely and meaningful manner, of:
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against:
Official source ↗
Source identification

Header printed in the source: Article 1 – paragraph 1 – point 19 / Regulation (EU) 2023/2854 / Article 38 – paragraph 3

Alternative wording Amendment 870 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
(b) the administrative, judicial and non-judicial remedies applicable under national and provided for in Article 39.
Justification

This amendment aligns Article 28 with Article 39, which expressly provides that consumers have access to administrative, judicial and non-judicial remedies. To enable consumers to effectively exercise these rights, traders should be required to inform them of all available remedies under applicable national law. Providing complete information enhances transparency, legal certainty and the effective enforcement of consumer rights, while ensuring consistency within the Regulation.

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against:
Official source ↗
Source identification

Header printed in the source: Article 1 – paragraph 1 – point 19 / Regulation (EU) 2023/2854 / Article 38 – paragraph 3 – point b

Additional proposed wording Amendment 871 · Damian Boeselager on behalf of the Verts/ALE Group ITRE · LIBE

(3a) In Article 38, the following paragraph is added:

Competent authorities shall cooperate to handle and resolve complaints effectively and in a timely manner, including by exchanging all relevant information by electronic means, without undue delay. This cooperation shall not affect the cooperation mechanisms provided for by Chapters VI and VII of Regulation (EU) 2016/679 and by Regulation (EU) 2017/2394. The European Commission shall make available means to enhance such cooperation, in particular via relevant software solutions to register and track cases, especially with cross-border relevance.'

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against:
Official source ↗
Source identification

Header printed in the source: Article 1 – paragraph 1 – point 19 / Regulation (EU) 2023/2854 / Article 38 – paragraph 3a (new)

Additional proposed wording Amendment 872 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE

(3a) In Article 38, the following paragraph is added:

Competent authorities shall cooperate early in the process to handle and resolve complaints effectively and in a timely manner, including by exchanging all relevant information by electronic means, without undue delay. This cooperation shall not affect the cooperation mechanisms provided for by Chapters VI and VII of Regulation (EU) 2016/679 and by Regulation (EU) 2017/2394.’

Justification

Requiring competent authorities to cooperate early in the process promotes the swift and effective handling of complaints, reduces procedural delays and facilitates the timely exchange of relevant information before issues become more complex. Early cooperation also helps avoid duplication of efforts, supports coherent enforcement across Member States and contributes to greater legal certainty for consumers and traders, while remaining without prejudice to the cooperation mechanisms established under Regulations (EU) 2016/679 and (EU) 2017/2394.

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against:
Official source ↗
Source identification

Header printed in the source: Article 1 – paragraph 1 – point 19 / Regulation (EU) 2023/2854 / Article 38 – paragraph 3a (new)

Additional proposed wording Amendment 873 · Michael McNamara, Irena Joveva, Sophie Wilmès, Oihane Agirregoitia Martínez, Veronika Cifrová Ostrihoňová, Christophe Grudler ITRE · LIBE

(3a) In Article 38, the following paragraph is added:

Competent authorities shall cooperate to handle and resolve complaints effectively and in a timely manner, including by exchanging all relevant information by electronic means, without undue delay. This cooperation shall not affect the cooperation mechanisms provided for by Chapters VI and VII of Regulation (EU) 2016/679 and by Regulation (EU) 2017/2394.'

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against:
Official source ↗
Source identification

Header printed in the source: Article 1 – paragraph 1 – point 19 / Regulation (EU) 2023/2854 / Article 38 – paragraph 3a (new)