The Data Governance Act as a new centrepiece of European data sharing law

Hans Graux

Every since the adoption of the European Data Strategy, the EU has taken a more proactive, innovative, and vigorous stance in encouraging responsible data sharing, especially in sectors where data sharing could be a driving force for the European data economy and society. On 25 November 2020, the Commission adopted a proposal for a Regulation on data governance, commonly dubbed: Data Governance Act, that aims to provide a legal underpinning for much of this strategic priority.

The proposed Act aims to make more data available and facilitate data sharing across sectors, by directly creating new governance mechanisms for instance. It aims to do so through four pillars of the proposal:

  • Firstly, it facilitates the reuse of certain public sector data that cannot be made available as open data under current law, due to intellectual property rights or privacy concerns for example. The reuse of such data would now be encouraged under the proposal, albeit with the possibility of introducing safeguards to prevent abuses. In addition, Member States must transparently communicate the conditions that apply to such reuse.
  • Secondly, it creates a new role in the data economy: the so-called data sharing service providers will function as data intermediaries, responsible for trustworthy data sharing or pooling within the common European data spaces, as described in the European Data Strategy. The proposal requires these service providers to notify the Member States of their activities, so that their work can be supervised.
  • Thirdly, it creates a legal framework for data altruism, allowing citizens and businesses to make their data freely available for the benefit of society, under the auspices of so-called data altruism organisations. Such organisations must have a not-for-profit character and are required to undergo a prior registration in the EU. Furthermore, they must periodically report on their activities.
  • And fourthly, it provides a range of measures to facilitate data sharing, in particular to improve transparency, supervision, compliance, and monitoring, including the establishment of the new European Data Innovation Board.

It is clear that the proposed Act aims to operationalise many of the objectives of the European Data Strategy, specifically by organising various roles, responsibilities, and principles, and by creating a clear legal framework for each of these. This approach has the potential of positively and radically incentivising data sharing within and across the public and private sector.

The proposal is of course just a first step, and still needs to navigate the normal European legislative process. Many potentially contentious details – such as prior notification and registration duties, the requirements to facilitate enforceability and sovereignty in the EU, or the institutionalisation of innovative roles – are undoubtedly still open for debate and can undergo significant evolutions. Nonetheless, if the core innovations are maintained, the Data Governance Act can truly become a gamechanger for data sharing in Europe.

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