BDI statement on the EU Data Act Proposal
With the introduction of a special civil law for data contracts, it is to be feared that data relationships between industry partners that already function well in practice will be jeopardised and that the Data Act will in this respect lead to legal uncertainties and irritations between the business partners. It is unclear whether the provisions of contract law will also affect existing contracts. The Data Act should therefore refrain from interfering with the - mostly wellfunctioning - business relationships in complex industrial data value chains and leave enough room for tailor-made solutions. If there are imbalances or gaps, these should be addressed through EU competition law or sectorspecific legislation. On the individual clauses: The general clause of Art. 13 (2) DA-E leads to considerable legal uncertainties. It remains unclear which criteria are to be used to determine good commercial practice in data access and use ("good commercial practice") or to determine a significant deviation ("grossly deviates") and who determines these criteria. Art. 13 (3 a) DA-E determines the unfairness of a clause which limits liability to intent and gross negligence or excludes liability altogether. At the same time, the clause does not determine what the reference point of liability is. Chapter V: Making data available to public sector bodies and Union institutions, bodies, agencies, or bodies based on grounds on exceptional need In the area of B2G data sharing, the BDI does not have sufficient evidence of the extent to which the previous voluntary cooperations make the nowenvisaged access obligations for data "in the public interest" necessary. A structural (market) failure that would justify legislative intervention in the form of an access obligation is still not discernible here.7 Not least, the COVID 19 pandemic has made it clear that a large number of companies from a wide range of sectors are already cooperating very unselfishly and successfully with public authorities. The legislative proposal also lacks an explicit and precise scope of application in Art. 15 DA-E, in which a mandatory B2G data exchange would be required due to an "exceptional necessity". The definitions of a "public 7
This was also confirmed, for example, by the European Commission itself in its communication from 2018 (SWD (2018) 125), which issues corresponding guidance in the B2B, B2G area: "A broad stakeholder dialogue was conducted on the basis of that Communication. It concluded that the issue at stake did not justify horizontal legislative intervention at this stage and that guidance would be more appropriate."
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