BRÈVE

La Commission européenne adopte une proposition d’acte sur la gouvernance des données / The European Commission adopts a Proposal for a Data Governance Act
Thomas Tombal

Le 25 novembre 2020, la Commission a adopté une proposition d’acte sur la gouvernance des données. Son but est de stimuler le partage volontaire des données en augmentant leur disponibilité et la confiance dans leur partage, en supportant la création d'espaces européens des données et en surmontant les obstacles techniques à leur réutilisation.

The Commission has adopted, on 25 November 2020, a Proposal for a Data Governance Act (“DGA”). The objective of this DGA is to foster voluntary data sharing by increasing data availability and trust in data sharing, by supporting the set-up and development of common European data spaces and by overcoming technical obstacles to the reuse of data.

In our increasingly digital society, data plays a key role in the generation of economic and societal benefits. Accordingly, one of the pillars of the European Commission’s digital strategy is the elaboration of a coherent European Strategy for data, which aims at ensuring Europe’s global competitiveness and data sovereignty. As part of this Strategy, the Commission has adopted, on the 25th of November 2020, a Proposal for a Regulation on European data governance (Data Governance Act – “DGA”).

The objective of this DGA is to foster voluntary (rather than compulsory) data sharing through the adoption of a governance framework. This framework aims at increasing data availability and trust in data sharing; at supporting the set-up and development of common European data spaces in strategic domains such as health and energy; and at overcoming technical obstacles to the reuse of data. More concretely, the proposed DGA contains 5 core chapters.

Firstly, the proposed DGA lays down the conditions for the re-use of certain categories of data held by public sector bodies, namely those that are “protected” on the grounds of commercial or statistical confidentiality, or on the grounds of the protection of personal data or of the intellectual property rights of third parties. According to the Commission, the DGA hereby complements the 2019 Open Data Directive, which does not apply to these types of “protected” data. This could be challenged, as, for instance, personal data are not necessarily excluded from the scope of the Open Data Directive.

Secondly, the proposed DGA erects requirements for the provision of three types of voluntary data sharing services. These are intermediation services between data holders and potential data users, intermediation services between data subjects and potential data users (Personal Information Management Systems – “PIMS”), and data cooperative services. Providers of such services would have to notify their activity to the competent authority (see below) and would have to comply with several obligations, such as the obligation to remain neutral regarding the data exchanged.

Thirdly, the proposed DGA aims at facilitating voluntary data sharing for the common good (“data altruism”). To do so, a register of “Data Altruism Organisations recognised in the EU” would be established, and a “common European data altruism consent form” would be developed to lower the costs of consent collection and to facilitate data portability.

In this regard, it will be interesting to see how potential overlaps with the General Data Protection Regulation (“GDPR”) will be addressed in the upcoming legislative process.

Fourthly, the proposed DGA contains provisions pertaining to the functioning of the competent authority(authorities) that will have to be designated by each Member State, in order to monitor and implement the above-mentioned provisions. In doing so, the designated competent authorities will notably have to collaborate with the data protection and competition authorities, as well as with the authorities in charge of cybersecurity or other relevant sectoral authorities.

Finally, the proposed DGA suggests the creation of the “European Data Innovation Board”, which is a formal expert group that would assist these designated competent authorities in developing best practices, and that would support and advise the Commission on matters of interoperability and of sectoral and cross-sectoral standardisation.