The public interest dimension of the single market for data: Public undertakings as a model for regulating private data sharing

• Published date: 01 January 2023
• Author: Heiko Richter
• Date: 01 January 2023
• DOI: http://doi.org/10.1111/eulj.12476

VARIETY: ORIGINAL ARTICLE

The public interest dimension of the single market

for data: Public undertakings as a model for

regulating private data sharing

Heiko Richter

*

Abstract

Data plays a crucial role for society. Accordingly, building a ‘single market for data’by increasing the

availability of public and private data ranks high on the EU policy agenda. But when advancing legal data

sharing regimes, there is an inevitable need to balance public and private interests. While the European

Commission continues to push for more binding rules on data sharing between private businesses, public

undertakings are already covered by mandatory rules. Exploring how the law addresses their data offers

valuable lessons on the reconciliation of market reasoning with the public interest. In particular, this arti-

cle inquires into the recast Open Data and Public Sector Information Directive, the Data Governance

Act, and different national rules which regulate access to and re-use of public undertakings' data. It iden-

tifies five striking characteristics and discusses their potential and limitations for regulating data sharing

by private undertakings. The implications serve as a guidepost for advancing the wider debate on build-

ing a single market for data in the EU. Some of them are already reflected in the upcoming EU Data Act.

1|INTRODUCTION

Creating a ‘single market for data’in the EU is one of the most pressing societal issues of our time and poses a signif-

icant challenge to legal scholarship and law-making. In its Data Strategy of February 2020, the Commission

emphasised the significance of data availability for the transformation of the economy and formulated its goal of cre-

ating a ‘genuine single market for data’.

1

This ambition is based on the premise that the ‘free flow of data’leads to

innovation and growth in the data economy.

2

Therefore, improving the EU-wide availability of data is the paradigm

for the further development of the underlying legal framework.

* Senior Research Fellow, Max Planck Institute for Innovation and Competition, Munich, Germany

1

Commission ‘A European strategy for data’(Communication) COM (2020) 66 final, 4.

2

COM (2020) 66 final, see n. 1, 2; but see already Commission ‘Building a European data economy’(Communication) COM (2017) 9 final, 5; Commission

‘Towards a common data space’(Communication) COM (2018) 232 final, 2, according to which data are ‘a key source of innovation and growth’and form

the ‘raw material of the Digital Single Market’.

Received: 16 October 2023 Accepted: 17 October 2023

DOI: 10.1111/eulj.12476

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution and

reproduction in any medium, provided the original work is properly cited.

© 2023 The Author. European Law Journal published by John Wiley & Sons Ltd.

Eur Law J. 2023;29:91–113. wileyonlinelibrary.com/journal/eulj 91

But what are the normative assumptions, challenges and implications for advancing the legal framework for data

sharing in the EU? According to the broad understanding of data sharing taken in this article, virtually all sorts of

data flows between public and private actors, be they institutional or individual, can be understood as data sharing.

3

Correspondingly, data-related regulation can follow different categorisations.

4

While there is no unified discourse on

the regulation of data sharing, various strands of policy debate revolve around a common issue: making the data

5

of

various actors (e.g. private undertakings, public entities, scientists, etc.) widely accessible. Correspondingly, regulation

has advanced to different stages depending on the area.

This article focuses on two seminal but so far unconnected strands of data regulation: rules which address data

sharing by private undertakings on the one hand, and rules which address the data of public sector entities on the

other hand. The hypothesis is that the advancement of regulating data sharing by private undertakings should con-

sider the legal framework for public entities. In particular, looking at public undertakings can constructively contribute

to the wider debate on the advancement of a single market for data. As a matter of introduction, it is possible to

elaborate on this claim by stating what is meant with the discourse on regulating private data sharing, why the public

interest should be considered for the further development of such regulation and why looking at the legal framework

for public undertakings' data appears crucial in this regard.

From the perspective of private economic law, the most notable discourse of recent years concerns the legal

framework for data sharing between private undertakings (B2B). Since 2015, the Commission has intensively dis-

cussed different measures to foster B2B data sharing, aiming to stimulate markets and innovation to ultimately cre-

ate societal wealth.

6

As private undertakings appear to not share enough data with each other, policies aim to

reduce barriers to sharing.

7

It started with the initial proposal to introduce exclusive rights in data, but the debate

has shifted its focus to the importance of access rights to private undertakings' data.

8

While the evolving access

frameworks tend to be sector-specific, the need for a horizontal access framework has been increasingly

emphasised.

9

In fact, the Commission's Data Strategy formulates concrete measures for a cross-sectoral framework,

which the EU legislator has set in motion with the Data Governance Act (DGA), a Regulation of May 2022.

10

Next

in the pipeline is the ‘Data Act’, for which the Commission published its proposal in February 2022 and a provi-

sional agreement has been reached in the trilogue negotiations in June 2023.

11

According to the proposal, the Data

Act should provide rules which mandate EU-wide data sharing across sectors with particular regards to data gener-

ated by products or related services (IoT devices); at the same time it sets out general rules that should apply to

3

See on the notion of data sharing H. Richter and P. R. Slowinski, ‘The Data Sharing Economy: On the emergence of New Intermediaries’, (2019)

50 International Review of Intellectual Property and Competition Law 4 et. seq.

4

For a taxonomy see A. Wernick, C. Olk and M. v. Grafenstein, ‘Defining Data Intermediaries’, (2020) Technology and Regulation 65.

5

Despite arguable differences, the terms ‘data’and ‘information’are used interchangeably, mostly due to conventions and regulatory contexts.

6

The Commission has identified B2B sharing as a ‘key driver for innovation and competitiveness in Europe’, see COM (2018) 232 final, see n. 2, 8. See also

COM (2020) 66 final, see n.1, 13.

7

OECD, Data-Driven Innovation (2015) 179; Deloitte and European Commission (eds), Study on emerging issues of data ownership, interoperability, (re-)

usability and access to data, and liability (2018); N. Duch-Brown, B. Martens and F. Mueller-Langer, ‘The Economics of Ownership, Access and Trade in

Digital Data’,JRC Digital Economy Working Paper 2017–01, available at <ssrn.com/abstract=2914144> (last visited 16 October 2023); W. Kerber, ‘A New

(Intellectual) Property Right for Non-Personal Data? An Economic Analysis’, (2016) 65 GRUR International 989.

8

On the issue of exclusive rights ‘in rem’and the broader term of data ownership regarding the legislative debate see D. Kim, ‘No one's ownership as the

status quo and a possible way forward: A note on the public consultation on Building a European Data Economy’, (2018) 13(2) Journal of Intellectual

Property Law & Practice 154; on shifting towards the access debate J. Drexl, ‘Designing Competitive Markets for Industrial Data –Between Propertisation

and Access’, (2017) 8 Journal of Intellectual Property, Information Technology and Electronic Commerce Law 257. See for further discussion of exclusive rights

sections 3.5. and 4.5.

9

On access regimes in general Drexl, see n. 8, 287; on sector-specific access regimes in the EU I. Graef, M. Husovec and J. van den Boom, ‘Spill-Overs in

Data Governance: The Relationship Between the GDPR's Right to Data Portability and EU Sector-Specific Data Access Regimes’, (2020) 1 Journal of

European Consumer and Market Law. See for a proposal on general horizontal access regulation for the IoT J. Drexl, Data Access and Control in the Era of

Connected Devices: Study on Behalf of the European Consumer Organisation BEUC (Brussels, 2018); furthermore COM (2020) 66 final, see n. 1, 4.

10

Parliament and Council Regulation (EU) 2022/868 of 30 May 2022 on European data governance and amending Regulation (EU) 2018/1724 [2022] OJ L

152/1 (Data Governance Act –DGA). See also Commission ‘Proposal on European Data Governance (Data Governance Act)’COM (2020) 767 final.

11

Commission ‘Proposal on harmonised rules on fair access to and use of data (Data Act)’COM (2022) 68 final (proposed Data Act); on the trilogue, see

Council of the EU, press release of 27 June 2023, available at <https://www.consilium.europa.eu/en/press/press-releases/2023/06/27/data-act-council-

and-parliament-strike-a-deal-on-fair-access-to-and-use-of-data/> (last visited 16 October 2023).

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