Preliminary remarks

Preliminary remarks

The BDI supports the intention of the EU Commission to promote the use and fair sharing of data. The fact that many companies still have some catching up to do in the economic use of data is shown by a representative study commissioned by the BDI entitled "Data Economy in Germany"1 . Of the approximately 500 companies surveyed, only a total of 28 percent could be classified as "digital" with regard to their own data management. 23 percent of the companies surveyed stated that they regularly search for new data sources and possible uses as part of a strategic process. 45 percent of the companies do not use data at all to optimise products or business models. Mirroring this, only twelve percent of the companies surveyed are willing to share their own data with third parties.

The Data Act offers the opportunity to shape a data economy guided by European values. However, it is to be feared that the Data Act will be associated with considerable additional effort, costs and legal uncertainties for many companies, and that they will have less incentive to invest in their own IoT products and services as a result.

With the present proposal for a regulation on harmonised rules for fair access to and use of data (Data Act), the European Commission is choosing an extremely complex set of horizontal rules that would fundamentally change the "rules of the game" of the European data economy. As already noted in our submissions in the run-up to the legislative proposal2 , the need for such a broad intervention in the basic principles of the data economy in still young markets is not sufficiently apparent to us. In its most recent progress report, the EU Commission itself points to a very heterogeneous development in the individual industries and sectors, regarding the EU data spaces.3 In this respect, a more sector- and application-specific approach seems to be much more effective in advancing the data economy in Europe.

The draft misses the opportunity to remove some major obstacles to the economic use of data - for example, the demarcation from the scope of the General Data Protection Regulation (GDPR). Instead, all IoT fields of application are subject to considerable additional requirements, interference in private autonomy and specifications for product design, without it being clear whether this will lead to the desired positive effect for the European

1 „Datenwirtschaft in Deutschland - Wo stehen die Unternehmen in der Datennutzung und was sind ihre größten Hemmnisse?", IW study commissioned by the BDI, February 2021, available at: https://bdi.eu/media/publikationen/?publicationtype=Studien#/publikation/news/datenwirts chaft-in-deutschland/. 2 BDI statement of 03.09.2021 in the context of the public consultation on the EU Data Act. 3 Commission Staff Working Document on Common European Data Spaces, SWD (2022) 45 final.

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data economy, or whether there are even negative effects to fear, e.g. if companies deliberately do not collect data in the future.

The role of the EU Commission should be limited to adopting measures that would promote data exchange in industrial sectors and lead to a data ecosystem in which, for example, voluntary model contract terms recommended by the EU Commission play an important role. In parallel, existing instruments, especially EU competition law, can also be used to correct theimbalance that has arisen in the affected sectors or markets, in the event of a structural market failure. It is also important to ensure the greatest possible coherence of the Data Act with other European regulatory activities. This concerns, for example, the Digital Markets Act, the Digital Services Act, the Data Governance Act and the AI Act.

The Data Act must refrain from a general and undifferentiated obligation to provide B2B machine data from operators or equipment suppliers of industrial plants. Data sharing in the B2B context should be based primarily on freedom of contract and market incentives.

In the submitted legislative proposal, we note in several places that the protection of sensitive information, including trade secrets, is not sufficiently ensured. Such sensitive information must generally be exempted from the obligation to share data and mechanisms to protect against competitive disadvantages must be anchored, as the safeguards provided by the Data Act (conclusion of NDAs, prohibition of the development of competing products, purpose limitation of data use) are not sufficient to meet the need for protection of the data (inferences about algorithms, source codes, recipes). To this end, a revision of central definitions in Chapter I in an industrysuitable sense is essential.

In the following chapters, we will comment on the individual aspects of the EU Commission's legislative proposal.