ملاحظات (41) تا (60)

(41) Given the current state of technology, it would be overly burdensome on microenterprises and small enterprises to impose further design obligations in relation to connected products manufactured or designed, or the related services provided, by them. That is not the case, however, where a microenterprise or a small enterprise has a partner enterprise or a linked enterprise within the meaning of Article 3 of the Annex to Recommendation 2003/361/EC that does not qualify as a microenterprise or a small enterprise and where it is subcontracted to manufacture or design a connected product or to provide a related service. In such situations, the enterprise which has subcontracted the manufacturing or design to a microenterprise or a small enterprise is able to compensate the subcontractor appropriately. A microenterprise or a small enterprise may nevertheless be subject to the requirements laid down by this Regulation as data holder where it is not the manufacturer of the connected product or a provider of related services. A transitional period should apply to an enterprise that has qualified as a medium-sized enterprise for less than one year and to connected products for one year after the date on which they were placed on the market by a medium-sized enterprise. Such a one-year period allows such a medium-sized enterprise to adjust and prepare before facing competition in the market for services for the connected products that it manufactures on the basis of the access rights provided by this Regulation. Such a transitional period does not apply where such a medium-sized enterprise has a partner enterprise or a linked enterprise that does not qualify as a microenterprise or a small enterprise or where such a medium-sized enterprise was subcontracted to manufacture or design the connected product or to provide the related service.

(42) Taking into account the variety of connected products producing data of different nature, volume and frequency, presenting different levels of data and cybersecurity risks and providing economic opportunities of different value, and for the purpose of ensuring consistency of data sharing practices in the internal market, including across sectors, and to encourage and promote fair data sharing practices even in areas where no such right to data access is provided for, this Regulation provides for horizontal rules on the arrangements for access to data whenever a data holder is obliged by Union law or national legislation adopted in accordance with Union law to make data available to a data recipient. Such access should be based on fair, reasonable, non-discriminatory and transparent terms and conditions. Those general access rules do not apply to obligations to make data available under Regulation (EU) 2016/679. Voluntary data sharing remains unaffected by those rules. The non-binding model contractual terms for business-to-business data sharing to be developed and recommended by the Commission may help parties to conclude contracts which include fair, reasonable and non-discriminatory terms and conditions and which are to be implemented in a transparent way. The conclusion of contracts, which may include the non-binding model contractual terms, should not mean that the right to share data with third parties is in any way conditional upon the existence of such a contract. Should parties be unable to conclude a contract on data sharing, including with the support of dispute settlement bodies, the right to share data with third parties is enforceable in national courts or tribunals.

(43) On the basis of the principle of contractual freedom, parties should remain free to negotiate the precise conditions for making data available in their contracts within the framework for the general access rules for making data available. Terms of such contracts could include technical and organisational measures, including in relation to data security.

(44) In order to ensure that the conditions for mandatory data access are fair for both parties to a contract, the general rules on data access rights should refer to the rule on avoiding unfair contractual terms.

(45) Any agreement concluded in business-to-business relations for making data available should be non-discriminatory between comparable categories of data recipients, independently of whether the parties are large enterprises or SMEs. In order to compensate for the lack of information on the conditions contained in different contracts, which makes it difficult for the data recipient to assess whether the terms for making the data available are non-discriminatory, it should be the responsibility of data holders to demonstrate that a contractual term is not discriminatory. It is not unlawful discrimination where a data holder uses different contractual terms for making data available if those differences are justified by objective reasons. Those obligations are without prejudice to Regulation (EU) 2016/679.

(46) In order to promote continued investment in generating and making available valuable data, including investments in relevant technical tools, while at the same time avoiding excessive burdens on access to and the use of data which make data sharing no longer commercially viable, this Regulation contains the principle that in business-to-business relations data holders may request reasonable compensation when obliged pursuant to Union law or national legislation adopted in accordance with Union law to make data available to a data recipient. Such compensation should not be understood to constitute payment for the data itself. The Commission should adopt guidelines on the calculation of reasonable compensation in the data economy.

(47) First, reasonable compensation for meeting the obligation pursuant to Union law or national legislation adopted in accordance with Union law to comply with a request to make data available may include compensation for the costs incurred in making the data available. Those costs may be technical costs, such as the costs necessary for data reproduction, dissemination via electronic means and storage, but not for data collection or production. Such technical costs may also include the costs for processing, necessary to make data available, including costs associated with the formatting of data. Costs related to making the data available may also include the costs of facilitating concrete data sharing requests. They may also vary depending on the volume of the data as well as the arrangements taken for making the data available. Long-term arrangements between data holders and data recipients, for instance via a subscription model or the use of smart contracts, may reduce the costs in regular or repetitive transactions in a business relationship. Costs related to making data available are either specific to a particular request or shared with other requests. In the latter case, a single data recipient should not pay the full costs of making the data available. Second, reasonable compensation may also include a margin, except regarding SMEs and not-for-profit research organisations. A margin may vary depending on factors related to the data itself, such as volume, format or nature of the data. It may consider the costs for collecting the data. A margin may therefore decrease where the data holder has collected the data for its own business without significant investments or may increase where the investments in the data collection for the purposes of the data holder’s business are high. It may be limited or even excluded in situations where the use of the data by the data recipient does not affect the data holder’s own activities. The fact that the data is co-generated by a connected product owned, rented or leased by the user could also reduce the amount of the compensation in comparison to other situations where the data are generated by the data holder for example during the provision of a related service.

(48) It is not necessary to intervene in the case of data sharing between large enterprises, or where the data holder is a small enterprise or a medium-sized enterprise and the data recipient is a large enterprise. In such cases, the enterprises are considered to be capable of negotiating the compensation within the limits of what is reasonable and non-discriminatory.

(49) To protect SMEs from excessive economic burdens which would make it commercially too difficult for them to develop and run innovative business models, the reasonable compensation for making data available to be paid by them should not exceed the costs directly related to making the data available. Directly related costs are those costs which are attributable to individual requests, taking into account that the necessary technical interfaces or related software and connectivity is to be established on a permanent basis by the data holder. The same regime should apply to not-for-profit research organisations.

(50) In duly justified cases, including where there is a need to safeguard consumer participation and competition or to promote innovation in certain markets, regulated compensation for making available specific data types may be provided for in Union law or national legislation adopted in accordance with Union law.

(51) Transparency is an important principle for ensuring that the compensation requested by a data holder is reasonable, or, if the data recipient is an SME or a not-for-profit research organisation, that the compensation does not exceed the costs directly related to making the data available to the data recipient and is attributable to the individual request concerned. In order to put data recipients in a position to assess and verify that the compensation complies with the requirements of this Regulation, the data holder should provide to the data recipient sufficiently detailed information for the calculation of the compensation.

(52) Ensuring access to alternative ways of resolving domestic and cross-border disputes that arise in connection with making data available should benefit data holders and data recipients and therefore strengthen trust in data sharing. Where parties cannot agree on fair, reasonable and non-discriminatory terms and conditions of making data available, dispute settlement bodies should offer a simple, fast and low-cost solution to the parties. While this Regulation only lays down the conditions that dispute settlement bodies need to fulfil to be certified, Member States are free to adopt any specific rules for the certification procedure, including the expiry or revocation of certification. The provisions of this Regulation on dispute settlement should not require Member States to establish dispute settlement bodies.

(53) The dispute settlement procedure under this Regulation is a voluntary procedure that enables users, data holders and data recipients to agree to bring their disputes before dispute settlement bodies. Therefore, the parties should be free to address a dispute settlement body of their choice, be it within or outside of the Member States in which those parties are established.

(54) To avoid cases in which two or more dispute settlement bodies are seized for the same dispute, in particular in a cross-border situation, a dispute settlement body should be able to refuse to deal with a request to resolve a dispute that has already been brought before another dispute settlement body or before a court or tribunal of a Member State.

(55) In order to ensure the uniform application of this Regulation, the dispute settlement bodies should take into account the non-binding model contractual terms to be developed and recommended by the Commission as well as Union or national law specifying data sharing obligations or guidelines issued by sectoral authorities for the application of such law.

(56) Parties to dispute settlement proceedings should not be prevented from exercising their fundamental rights to an effective remedy and a fair trial. Therefore, the decision to submit a dispute to a dispute settlement body should not deprive those parties of their right to seek redress before a court or tribunal of a Member State. Dispute settlement bodies should make annual activity reports publicly available.

(57) Data holders may apply appropriate technical protection measures to prevent the unlawful disclosure of or access to data. However, those measures should neither discriminate between data recipients, nor hinder access to or the use of data for users or data recipients. In the case of abusive practices on the part of a data recipient, such as misleading the data holder by providing false information with the intent to use the data for unlawful purposes, including developing a competing connected product on the basis of the data, the data holder and, where applicable and where they are not the same person, the trade secret holder or the user can request the third party or data recipient to implement corrective or remedial measures without undue delay. Any such requests, and in particular requests to end the production, offering or placing on the market of goods, derivative data or services, as well as those to end importation, export, storage of infringing goods or their destruction, should be assessed in the light of their proportionality in relation to the interests of the data holder, the trade secret holder or the user.

(58) Where one party is in a stronger bargaining position, there is a risk that that party could leverage such a position to the detriment of the other contracting party when negotiating access to data with the result that access to data is commercially less viable and sometimes economically prohibitive. Such contractual imbalances harm all enterprises without a meaningful ability to negotiate the conditions for access to data, and which may have no choice but to accept take-it-or-leave-it contractual terms. Therefore, unfair contractual terms regulating access to and the use of data, or liability and remedies for the breach or the termination of data related obligations, should not be binding on enterprises when those terms have been unilaterally imposed on those enterprises.

(59) Rules on contractual terms should take into account the principle of contractual freedom as an essential concept in business-to-business relationships. Therefore, not all contractual terms should be subject to an unfairness test, but only those terms that are unilaterally imposed. This concerns take-it-or-leave-it situations where one party supplies a certain contractual term and the other enterprise cannot influence the content of that term despite an attempt to negotiate it. A contractual term that is simply provided by one party and accepted by the other enterprise or a term that is negotiated and subsequently agreed in an amended form between contracting parties should not be considered to have been unilaterally imposed.

(60) Furthermore, the rules on unfair contractual terms should apply only to those elements of a contract that are related to making data available, that is contractual terms concerning access to and use of the data as well as liability or remedies for breach and termination of data related obligations. Other parts of the same contract, unrelated to making data available, should not be subject to the unfairness test laid down in this Regulation.