Data Act · Regulation (EU) 2023/2854
Article 8
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Article total: 1 part · 0 Council drafts · 1 Parliament amendment
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Additional proposed wording Amendment 637 · Julie Rechagneux, Mélanie Disdier, Aleksandar Nikolic, Pierre-Romain Thionnet, Alexandre Varaut, Fabrice Leggeri, Marion Maréchal, Christophe Bay ITRE · LIBE
4a. In Article 8, the following paragraph is added:
Data holders and data recipients that comply with a code of conduct drawn up by industry associations and recognised by the Commission shall be presumed to comply with the requirement to make data available under fair, reasonable and non-discriminatory terms and conditions laid down in paragraph 1. The Commission may recognise such codes of conduct, taking into account the advice of the EDIB.
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(new)
Justification
Data holders and recipients complying with a code of conduct drawn up by industry associations and recognised by the Commission are presumed to comply with the requirement of fair, reasonable and non-discriminatory terms. The presumption is rebuttable and does not affect the mandatory character of the obligation to make data available. Sectoral codes provide legal certainty at lower cost, particularly for SMEs.
against:
Article 8
Conditions under which data holders make data available to data recipients
- 1.
Where, in business-to-business relations, a data holder is obliged to make data available to a data recipient under Article 5 or under other applicable Union law or national legislation adopted in accordance with Union law, it shall agree with a data recipient the arrangements for making the data available and shall do so under fair, reasonable and non-discriminatory terms and conditions and in a transparent manner in accordance with this Chapter and Chapter IV.
- 2.
A contractual term concerning access to and the use of data, or liability and remedies for the breach or termination of data-related obligations, shall not be binding if it constitutes an unfair contractual term within the meaning of Article 13 or if, to the detriment of the user, it excludes the application of, derogates from or varies the effect of the user’s rights under Chapter II.
- 3.
A data holder shall not discriminate regarding the arrangements for making data available between comparable categories of data recipients, including partner enterprises or linked enterprises of the data holder when making data available. Where a data recipient considers that the conditions under which data has been made available to it are discriminatory, the data holder shall without undue delay provide the data recipient, upon its reasoned request, with information showing that there has been no discrimination.
- 4.
A data holder shall not make data available to a data recipient, including on an exclusive basis, unless requested to do so by the user under Chapter II.
- 5.
Data holders and data recipients shall not be required to provide any information beyond what is necessary to verify compliance with the contractual terms agreed for making data available or with their obligations under this Regulation or other applicable Union law or national legislation adopted in accordance with Union law.
- 6.
Unless otherwise provided for in Union law, including Article 4(6) and Article 5(9) of this Regulation, or by national legislation adopted in accordance with Union law, an obligation to make data available to a data recipient shall not oblige the disclosure of trade secrets.
- 6a.
Data holders and data recipients that comply with a code of conduct drawn up by industry associations and recognised by the Commission shall be presumed to comply with the requirement to make data available under fair, reasonable and non-discriminatory terms and conditions laid down in paragraph 1. The Commission may recognise such codes of conduct, taking into account the advice of the EDIB.
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