Regulation (EU) 2023/2854 of the European Parliament and of the Council of 13 December 2023 on harmonised rules on fair access to and use of data and amending Regulation (EU) 2017/2394 and Directive (EU) 2020/1828 (Data Act)

Source : EU law

Code/RS : 2023/2854

Abbreviation :
Data Act
Provision :
Art. 8
Short description :
Conditions under which data holders make data available to data recipients
Nature of the provision :
Obligation to share data with data recipients
Status :
Transitional period Note: Applies in relation to data provision obligations under EU law or national legislation adopted in accordance with EU law that enters into force on 12 September 2025
Sector :
All

Legal text :

1. Where, in business-to-business relations, a data holder is obliged to make data available to a data recipient under Article 5 or under other applicable Union law or national legislation adopted in accordance with Union law, it shall agree with a data recipient the arrangements for making the data available and shall do so under fair, reasonable and non- discriminatory terms and conditions and in a transparent manner in accordance with this Chapter and Chapter IV. 2. A contractual term concerning access to and the use of data, or liability and remedies for the breach or termination of data-related obligations, shall not be binding if it constitutes an unfair contractual term within the meaning of Article 13 or if, to the detriment of the user, it excludes the application of, derogates from or varies the effect of the user’s rights under Chapter II. 3. A data holder shall not discriminate regarding the arrangements for making data available between comparable categories of data recipients, including partner enterprises or linked enterprises of the data holder when making data available. Where a data recipient considers that the conditions under which data has been made available to it are discriminatory, the data holder shall without undue delay provide the data recipient, upon its reasoned request, with information showing that there has been no discrimination. 4. A data holder shall not make data available to a data recipient, including on an exclusive basis, unless requested to do so by the user under Chapter II. 5. Data holders and data recipients shall not be required to provide any information beyond what is necessary to verify compliance with the contractual terms agreed for making data available or with their obligations under this Regulation or other applicable Union law or national legislation adopted in accordance with Union law. 6. Unless otherwise provided for in Union law, including Article 4(6) and Article 5(9) of this Regulation, or by national legislation adopted in accordance with Union law, an obligation to make data available to a data recipient shall not oblige the disclosure of trade secrets.

Actor with an obligation to share data

‘Data holder = a natural or legal person that, in accordance with this regulation, applicable EU law or national legislation adopted in accordance with EU law, has the right or obligation to use and make available data, including, where contractually agreed, product data or related service data which it has retrieved or generated during the provision of a related service.

Beneficiaries

‘data recipient’ = a natural or legal person, other than the user of a connected product or related service, acting for purposes relating to their trade, business, craft or profession, to whom the data holder makes data available, including a third party following a request by the user to the data holder or in accordance with a legal obligation under EU law or national legislation adopted in accordance with EU law

Linking criteria for Switzerland

Linking criteria for Switzerland

Financial aspects

Remuneration may be required (non-discriminatory and reasonable, and may include a margin) Note: Art. 9: When agreeing on any compensation, the data holder and the data recipient must take into account in particular: - the costs incurred in making the data available (the costs necessary for the formatting of data, dissemination via electronic means and storage); - investments in the collection and production of data, where applicable

Binding and/or enforceable

Binding obligation; enforceable right

Conditions for accessing data

In the context of B2B relationships, a data holder is obliged under Article 5 or applicable provisions of EU law or national law adopted in accordance with EU law to make data available to a data recipient.

Exceptions and limitations

Exceptions applicable to obliged persons: The obligation to make data available to a data recipient does not require the disclosure of trade secrets.

Not specified Note: Where the data holder is required to make data available to a data recipient under Article 5, dynamic data must be provided where relevant and technically feasible

Format

No required format Note: A data holder agrees with a data recipient on how to make data available at fair, reasonable and non-discriminatory terms and conditions and in a transparent manner.

Plateform

n/a

Actor with an obligation to share data ‘Data holder = a natural or legal person that, in accordance with this regulation, applicable EU law or national legislation adopted in accordance with EU law, has the right or obligation to use and make available data, including, where contractually agreed, product data or related service data which it has retrieved or generated during the provision of a related service.

Beneficiaries ‘data recipient’ = a natural or legal person, other than the user of a connected product or related service, acting for purposes relating to their trade, business, craft or profession, to whom the data holder makes data available, including a third party following a request by the user to the data holder or in accordance with a legal obligation under EU law or national legislation adopted in accordance with EU law

Linking criteria for Switzerland Art. 1(3): The obligation applies to: - Swiss data holders that make data available to data recipients in the EU. Beneficiaries: - Swiss users of connected products and related services located in the EU; - Swiss data recipients located in the EU to whom the data is made available.

Financial aspects Remuneration may be required (non-discriminatory and reasonable, and may include a margin) Note: Art. 9: When agreeing on any compensation, the data holder and the data recipient must take into account in particular: - the costs incurred in making the data available (the costs necessary for the formatting of data, dissemination via electronic means and storage); - investments in the collection and production of data, where applicable

Binding and/or enforceable Binding obligation; enforceable right

Conditions for accessing data In the context of B2B relationships, a data holder is obliged under Article 5 or applicable provisions of EU law or national law adopted in accordance with EU law to make data available to a data recipient.

Exceptions and limitations Exceptions applicable to obliged persons: The obligation to make data available to a data recipient does not require the disclosure of trade secrets.

Time component Not specified Note: Where the data holder is required to make data available to a data recipient under Article 5, dynamic data must be provided where relevant and technically feasible

Format No required format Note: A data holder agrees with a data recipient on how to make data available at fair, reasonable and non-discriminatory terms and conditions and in a transparent manner.

Plateform n/a

Compilation and Disclaimer

This index was prepared on behalf of the IPI by the law firm id est avocats Sàrl (for the section on Swiss law) and the law firm Pierstone (for the section on European law).

This index does not constitute legal advice, and no guarantee is given regarding its completeness.

Neither id est avocats Sàrl, nor Pierstone, nor the IPI or the FDJP can be held liable for any decisions or actions taken on the basis of this index.