By now it is clear that, contrary to what the Commission may want everybody else to believe, the Digital Omnibus contains changes to the EU’s digital acquis that go well beyond what can even charitably be described as technical adjustments. Much of the attention has focused on changes to core concepts underpinning the data protection and ePrivacy frameworks, which would have far-reaching consequences for the protection of fundamental rights. But while most of the pushback has focused on these proposals, a number of substantive changes to the legislative texts dealing with non-personal data have received comparatively little attention—most notably a proposal to allow differentiated charging and access conditions for the re-use of public sector data by very large commercial actors.
When it comes to non-personal data, the Digital Omnibus proposal takes a fairly radical approach to simplification. It proposes to consolidate the provisions of the 2023 Data Act, the 2022 Data Governance Act, the 2018 Free Flow of Non-Personal Data Regulation, and the 2019 Open Data Directive into a single legislative text: the Data Act. On its surface, this overhaul of the EU rulebook governing non-personal data appears to be a sensible step aimed at providing greater clarity and reducing overlap and inconsistency.
Back to a less prescriptive approach to data governance
Most of the proposed changes simply fold provisions from the other three legislative instruments into the text of the Data Act. But there are also some substantive modifications. For the Data Act itself, this includes a proposal to further narrow the scope of the provisions on business-to-government data sharing provisions in Chapter V of the Regulation, shifting from situations of “exceptional need” to the more limited category of “public emergencies.” This moves Chapter V even further from establishing anything resembling a framework for a European Public Data Commons (which we had advocated for during the negotiations on the Data Act), but it does bring greater definitional clarity.
Similarly, the changes affecting the Data Governance Act take aim at some of the regulatory exuberance that characterized the Commission’s earlier approach to data policy under Commissioner Breton. The Digital Omnibus proposes to remove the extensive reporting and transparency obligations for data altruism organizations introduced by the DGA. It also significantly scales back the regulatory regime for data intermediation services by turning it into a voluntary framework, reducing the number of applicable obligations, and—most consequentially—replacing the requirement to keep data intermediation services legally separate from any other service a company offers with the much less onerous obligation to keep such services functionally separate.
While calling these changes “technical in their nature” may not be entirely accurate, they can nevertheless be seen as reasonable steps toward the simplification of the legislative framework. There is, however, at least one area in which the Digital Omnibus proposes a fairly substantial realignment of an underlying policy objective—namely, in the provisions of the Open Data Directive that govern charging for open government data and the use of standard licences for such data.
The paradox of open (government) data
Included in the transposition of these provisions of the Open Data Directive into the Data Act is a proposal to allow public sector bodies to set different conditions and to charge higher fees for the re-use of public sector data by very large enterprises—in particular undertakings designated as gatekeepers under the Digital Markets Act. According to the Commission, this aims to prevent such actors from leveraging their substantial market power to the detriment of fair competition and innovation.
This objective is further developed in a new recital (25), which almost reads like a restatement, in legislative language, of the Paradox of Open that we postulated back in 2021:
Start-ups, [small and medium-sized enterprises] and enterprises from sectors with less-developed digital capabilities struggle to re-use data and documents. At the same time a few very large entities have emerged with considerable economic power in the digital economy through the accumulation and aggregation of vast volumes of data and the technological infrastructure for monetising them. Those very large enterprises include undertakings […] that are designated as gatekeepers under [the Digital Markets act] […]. To address those imbalances and strengthen competition and innovation, public sector bodies should be able to introduce special conditions in licences pertaining to the re-use of data and documents by very large enterprises. Any such conditions should be proportionate [and] based on objective criteria […]. Such special conditions may, inter alia, pertain to the charges and fees or the purposes of re-use.
To implement this policy objective, the Digital Omnibus introduces two distinct changes to the open government data regime. The first concerns charging: it explicitly allows public sector bodies to apply differentiated fees for the re-use of data by very large enterprises, including gatekeepers. The second concerns licensing: it allows public sector bodies to depart from standard licences and introduce special licence conditions for such actors. While these two changes are related, they operate through different mechanisms and have very different implications.
The intent behind both changes is laudable. The Paradox of Open government data is real: formally open regimes can disproportionately benefit actors with the scale, infrastructure, and capital required to exploit them at industrial scale. Allowing public sector bodies to respond to these asymmetries, rather than treating all re-users as functionally equivalent, is a reasonable correction that can contribute to maintaining openness as the default condition for public sector information.
The change enabling differentiated charging—introduced in Article 32q(6)—appears largely unproblematic and is worth supporting. Charging is already an accepted governance lever in the open data framework. Allowing higher fees for very large enterprises provides a targeted way to address asymmetric benefits without undermining openness as such.
By contrast, the parallel change introduced in Article 32r(4), which allows public sector bodies to impose non-standard licence conditions for very large enterprises, is considerably more problematic. As COMMUNIA has pointed out, weakening the role of standard licences risks fragmenting the open licensing ecosystem, increasing legal uncertainty, and undermining interoperability across datasets and projects that rely on licenses that comply with the Open Definition.
Crucially, such licensing flexibility does not appear necessary to achieve the regulatory objective articulated by the Commission. Differentiated charging already provides a proportionate and effective instrument to address market power asymmetries. Introducing actor-specific license conditions is not necessary to enable differentiated charging, but would add complexity and risk without a clear corresponding benefit. As such, it needlessly threatens to erode one of the key foundations of the EU’s open data framework.
A welcome intervention
The proposed changes mark a departure from a strict “open means open” approach, but they fit within a broader and increasingly visible trend in data policy. They reflect a growing recognition that openness alone is not sufficient to address structural concentrations of power in the digital environment—and that formally neutral access regimes can produce highly unequal outcomes.
Importantly, this approach not only acknowledges existing power asymmetries but also gives public sector institutions the ability—at least in theory— to generate revenue from those actors that are most likely to benefit from large-scale re-use of public sector data. In doing so, it creates space for a more balanced relationship between public data holders and powerful commercial AI companies that rely on their access.
This shift also aligns with a wider recalibration of the normative foundations of open access and open data, triggered largely by the surging demand for data driven by the AI boom. For many organizations that provide access to large volumes of data, this demand translates into rising operational costs and increasing strain on technical infrastructure.
In this context, the ability to differentiate between different classes of re-users may allow public institutions—including cultural heritage institutions—to experiment with new charging models that better reflect patterns of use and capacity to pay. This is something we are actively exploring in discussions with Europeana and members of the Europeana Network. It is encouraging to see the European Commission creating the regulatory conditions for such experiments aimed at ensuring the sustainability of organizations that form an important pillar of the public information ecosystem.
The challenge for the legislator is therefore not whether to allow differentiation in the re-use of public sector data, but how to do so in a way that addresses structural asymmetries while preserving standard licensing and openness as the default foundations of Europe’s open data framework.
