European Commission publishes guidelines on reasonable compensation for data access under the Data Act

The European Commission has adopted official guidelines on the calculation of reasonable compensation provided for in Article 9 of Regulation (EU) 2023/2854, known as the Data Act. The document aims to support data holders and data recipients in applying the rules on mandatory business-to-business data sharing, strengthening legal certainty and ensuring the uniform application of the regulation across the European Union.

The guidelines contribute to the central objective of the Data Act: to boost the European data economy by removing barriers to data sharing, without undermining incentives to invest in technologies for data collection and generation.

One of the pillars of the framework is the application of FRAND principles – fair, reasonable and non-discriminatory terms. The Commission clarifies that compensation for making data available is not mandatory and that, where it exists, it may include a margin, provided it remains within reasonable limits. Compensation must not be economically prohibitive or act as an obstacle to exercising the right of access to data.

The guidelines also stress that differentiation between data recipients cannot be based on competitive considerations, such as whether a request comes from a current or potential competitor. Distinctions are only permissible when based on objective criteria, such as additional costs related to security, confidentiality, personal data protection, trade secrets, or specific technical burdens linked to the format, volume, or frequency of the data.

An important highlight is the preferential treatment granted to small and medium-sized enterprises (SMEs) and non-profit research organisations. In these cases, the compensation required may not exceed the costs directly incurred in making the data available, and any profit margin is excluded. The regulation therefore seeks to prevent disproportionate financial burdens from limiting these entities’ access to data.

The document also clarifies which costs are eligible, distinguishing between incremental costs necessary for making the data available – such as formatting, dissemination, specific storage, or additional measures to protect sensitive data – and investments in data collection or generation, which may only be considered for the purposes of a potential margin and within strict limits. General costs, already amortised expenses, or speculative risks are excluded.

With regard to transparency, the Data Act allows recipients to request sufficiently detailed information on the basis for calculating compensation, in order to verify compliance with legal principles, while safeguarding trade secrets and competition rules.

Finally, the guidelines recall that any disputes may be resolved through national courts, certified alternative dispute resolution mechanisms, or the competent national authorities. With this document, the Commission seeks to ensure a balanced application of the Data Act, promoting a fairer, more accessible and more innovative internal data market.

For more information, please consult the European Commission’s official page.