To properly function a public data commons needs to be European in scope

Analysis
October 21, 2022

When the European Commission published its proposal for the Data Act (DA) — which is currently making its way through Parliament and Council — it justified the decision to include harmonized EU-wide rules for Business-to-Government (B2G) data sharing in situations of exceptional need to:

Ensure a coherent framework in the single market for national as well as sectoral approaches to tackling data barriers, and ensure comparable access and use conditions for common European data spaces. (Impact Assessment Report, p. 25)

Likewise, the Commission defended the introduction of an EU-level framework in light of the transnational nature of today’s challenges, which require a high level of data richness and diversity to allow data pattern detection by public sector bodies on datasets that are not sufficiently available at the national level. On this point, the Impact Assessment Report notes that:

Many of today’s societal challenges, such as health crises and environment-related extreme events, are of a cross-border nature and therefore require data from across the EU in order to address them. (p. 24)

In the discussions about the B2G data sharing provisions in the DA, the issue of subsidiarity plays an important role. Questions have been raised, first, about the need for an EU-level regulatory framework and, second, about its relationship with existing — and future — sectoral data sharing regulation.

When we developed our proposal for a public interest data sharing framework – Public Data Commons – we kept both of these concerns in mind. Regarding the relationship between horizontal rules in the DA proposal and sectoral regulations – such as the proposed regulation for a European Health Data Space – our proposed framework gives clear precedence to more specific sectoral rules over the more generic horizontal ones.

Equally, concerning the more controversial issue of subsidiarity, our Public Data Commons proposal takes a clear stance. By calling for the introduction of the European Public Data Commons as a central EU-wide clearing house and aggregator of public interest data, our proposal doubles down on the insight from the Impact Assessment Report: that a Common European Data Space living up to its name requires regulatory intervention at the EU-level.

We are making this proposal in full awareness of the subsidiarity questions raised by it. Still, we are ultimately convinced that the realization of the regulatory goals underpinning the Commission proposal requires supranational intervention. Horizontal rules for B2G data sharing are crucial to include public interest considerations in data exchanges between private and public sector bodies as well as to redistribute societal value by allowing public sector bodies to fulfill their mandates in a data-driven world.

The High-Level Expert Group previously identified the need to develop a harmonized B2G public interest data sharing framework in the run-up to the Commission proposal. We are convinced that this framework needs to be complemented by a strong and democratically accountable European Public Data Commons that can increase data availability and reusability by third parties pursuing a public interest objective.

In particular, five reasons require the introduction of an EU-level steward of public interest data in the proposed horizontal framework by the Commission.

  1. A European Public Data Commons would contribute to achieving the core objective of the European strategy for Data to build a common European data space. This would further strengthen legal certainty for private sector bodies operating in cross-border settings. On this point, the Impact Assessment Report specifically notes that European data value chains “are already structured largely in a cross-border manner” (p. 26), while data holders and data users tend to be established in different countries.
  2. A European Public Data Commons body, acting as an EU-wide steward of public interest data, would increase data availability and reusability by third parties acting in the pursuit of an objective of public interest. This ambition to access “data for the public good” (p. 7), especially by data reusers engaged in public interest research, is one of the main objectives laid down in the European strategy for data due to the current lack of available databases for research purposes. Our framework strengthens the original provisions in article 21 of the DA proposal by increasing the reuse of privately held data for research and statistical purposes.
  3. By acting as a clearinghouse, the European Public Data Commons increases the overall quality of the shared data. The European Public Data Commons is tasked with transforming, reformatting, or otherwise modifying the data to integrate it into the repository (provided that the data is also preserved in the original format) and aggregating it with other – already existing – data sources. In doing so, the European Public Data Commons also contributes to increasing the overall protection of citizens’ data and confidential business data by ensuring that personal data is effectively anonymized and aggregated and that all necessary measures are taken to preserve the confidentiality of trade secrets.
  4. The European Public Data Commons would also strengthen transparency in B2G data sharing processes, one of the key recommendations issued by the High-Level Expert Group. Accordingly, the European Public Data Commons is tasked with publishing data sharing requests for the data it holds as well as providing a description of the data received in a single publicly available database.
  5. Fifth, the European Public Data Commons reduces regulatory overhead for private sector bodies in situations where they face multiple requests for data sharing simultaneously and on multiple occasions. This form of flexibility is achieved by entrusting competent national authorities to evaluate the legality and validity of public interest requests for data sharing and to check whether the data holder has already made the same data available to the European Public Data Commons. In this framework, the European Public Data Commons acts as an important intermediary to streamline administrative burdens between private and public sector bodies.

These five functions would be carried out with full democratic control and society-wide accountability of the European Public Data Commons. Our framework proposes the management of the European Public Data Commons to be placed under the Publications Office of the European Union as its tasks fit within the existing mission “to support EU policies and ensure that this broad range of information is available to the public as accessible and reusable data to facilitate transparency, economic activity and the diffusion of knowledge”. In light of this mission and to ensure trust in the new body, we propose the European Public Data Commons to be governed by representatives from national competent authorities, the Publications Office of the European Union, academic research bodies, civil society organizations, and national statistics bodies.

As we argue in our Data Commons Primer, this is a crucial step to establishing effective stewardship of shared data. This enables the European Public Data Commons to become a trusted European institutional vehicle for the collective governance of public interest data.

Francesco Vogelezang
Paul Keller