Data Act: EU negotiators reach a provisional agreement on the proposed regulation

• EU negotiators reach provisional agreement on the proposed European Data Act

• Agreement reached after a series of technical and political meetings

• Provisional text aims to bridge different approaches on data in scope, trade secrets' protection, transitional provisions, and application date

• Scope of IoT data sharing obligations now includes 'readily available data'

• Strengthened protection for trade secrets and business-sensitive information

• Introduction of 'trade secret holder' concept aligned with EU Trade Secrets Directive

• Data holder and user can contractually limit data sharing for security and safety reasons

• Public bodies' access to personal data limited, except in cases of public emergency

• Extended transition period before Data Act applies

• New products required to meet manufacturing and design obligations after additional 12-month period

• Formal approval by European Parliament and Council required before entry into force

• CECE to monitor legislative process and support implementation of data sharing requirements

On 27th June, the EU policymakers from the Swedish Presidency of the Council and the European Parliament reached the final act of the inter-institutional negotiations phase on the European Data Act by striking a political agreement on the proposed regulation.

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The agreement reached last week is the result of a series of technical and political meetings started in March. The provisional text agreed aims to bridge the different approaches taken by co-legislators on a number of crucial aspects of the new data law under the respective mandates for negotiations, including, inter alia, data in scope, trade secrets’ protection, transitional provisions and application date.

The Data Act represents a priority file for construction equipment manufacturers. As such, moving from CECE key recommendations on the proposed regulation, the main elements of the provisional political agreement are reported below.

• The scope of IoT data sharing obligations now covers the notion of ‘readily available data’ in line with CECE key ask on the data that is to be made available by data holders. The horizontal notion of ‘readily available data’ corresponds to a mix of ‘product data’ and ‘related services data’ (newly introduced definitions) that is obtained by data holders “without disproportionate effort, going beyond a simple operation”.

• The protection granted to trade secrets and business-sensitive information has been strengthened in line with CECE position. Data holders can now deny data access when it is duly demonstrated that a trade secret disclosure could lead to “serious and irreparable economic losses”. Such demonstration should be based on objective elements such as enforceability of protection in third countries, the innovative nature of the product and the level of confidentiality. In addition, it seems that EU lawmakers also introduced the concept of ‘trade secret holder’ different by data holder and aligned with the definition provided under the EU Trade Secrets Directive.

• Data holder and user can now agree contractually to limit data sharing if this is contrary to the security and safety requirements of the connected products.

• In Business-to-Government (B2G), public bodies’ access to personal data is now limited. Public sector bodies can access personal data only in cases of public emergency such as pandemic.

• The transition period before the Data Act applies is extended. The Data Act will start applying 20 months after its entry into force. In addition, the new products are required to meet the manufacturing and design obligations established in Article 3(1) after an additional 12-month period from the application date.

Next steps

The provisional political agreement reached by the European Parliament and the Council is now subject to formal approval by the two co-legislators. Once adopted, the Data Act will enter into force on the 20^th day following its publication in the Official Journal of the European Union (OJEU).

CECE will continue to closely monitor the final steps of the legislative process. Members will be informed of the publication of the final legal act and then supported with the implementation of the newly introduced data sharing requirements.