The Confederation of Swedish Enterprise welcomes the Swedish Presidency’s work in the Council and the corresponding work in the European Parliament in the proposed Data Act to find appropriate wording, clarifications and necessary amendments. Indeed, the Confederation acknowledges the objective of the Data Act, but questions whether a number of the policy instruments proposed within the Act are likely to achieve its intended objective. The following will focus on chapter V, which requires data holders - where there is an exceptional need - to make data available to public sector bodies.
Chapter V in the Data Act is without prejudice to existing legislation, which may also offer legal grounds for public sector bodies to access business data. For example, Chapter 4 of the recently adopted Data Governance Act, which stipulates rules for data altruism, allows for voluntary B2G data sharing.
The Confederation argues that the basis for proposing mandatory B2G data sharing in the Data Act is weak. Chapter V of the Data Act has been advanced despite the fact that businesses have successfully proven their willingness to cooperate with public sector bodies in the event of public emergencies, such as the COVID-19 crisis. Indeed, companies agree that - for specific use-cases with a clear public interest - B2G data sharing is necessary, with the appropriate safeguards. The Confederation therefore regrets that the immense potential of voluntary cooperative data exchanges has been overlooked in the Data Act proposal.
The report by the European Commission’s Expert Group report clearly shows that B2G data sharing is relatively limited. However, the report does not offer a sufficient basis for mandatory B2G data sharing. The reasons for the current relatively limited B2G data sharing are mainly organisational, technical and legal obstacles, combined with the lack of a data-sharing culture. The report highlights a few main examples of such obstacles, such as a lack of knowhow in the public sector for identifying valuable data, a lack of incentives for private actors to share data with the public sector, uncertainty over consumers’ reaction to data sharing, legal ambiguities surrounding intellectual property rights and the lack of interoperability.
Legislators must put forward amendments that better address the obstacles for B2G data sharing that the European Commission’s expert group have pointed out. The Data Act should aim to create a framework that enables companies to feel safe when sharing data with public sector bodies.
Therefore, the Data Act should be complemented with sufficient
In addition to these measures, the concept of ‘exceptional need’ is so broad that it will inevitably face implementation difficulties in practice. The Confederation of Swedish Enterprise urges the co-legislators to limit the scope of chapter V, and to avoid abuse of the right to require privately held data.