von NIK ROEINGH
Data is the foundation for evidence-based policymaking. Particularly in the area of environmental and climate protection, they open up new opportunities for the state to fulfil its tasks more efficiently and to unlock value for the development of the common good. This requires access to the relevant data, which is often only available to a small number of private actors. To enable state actors and the civil society to develop innovative solutions for pressing challenges the legislator ought to pave the way for access to such data. The existing and future legal framework offers potential for optimisation.
End of 2023, the Data Act entered into force. Its normative requirements will apply from September 2025. To a certain extent, it forms the keystone of the European data strategy and completes the regulatory picture that the EU legislator has already drawn in the context of the data economy with the DGA and the Implementing Act on High-value Datasets. The overall aim of all the regulations is to create a single European market for data, or rather a single European data space. It is hoped that this will enhance the use of data in Europe to foster innovation and unlock commercial value. The Data Act’s focus is clearly on the economic benefits of data and its status as a tradable commodity. Nothing illustrates this better than the oft-used but distorted labelling of data as the new oil or the new gold. The legal debate on data access and data use rights is also dominated by those who see data in terms of its economic potential.
The Potential of Data for the Common Good
By contrast, the potential of data – i.e. machine-readable coded information – for the common good is generally underexposed. Yet the need for it is growing. Almost all areas of public life can benefit from data. In particular, non-personal machine and sensor data can help uncover previously hidden correlations and, on that basis, to take action to improve the well-being of all – whether regarding mobility, energy supply, health, or combating housing shortage. Currently, the government lacks the data to decide such policy issues. Instead, powerful private companies such as Airbnb, Uniper and Uber collect and gatekeep relevant data. A solution is needed to address this imbalance in data access.
Voluntary Data Sharing Mechanisms in the Form of “Data Altruism”
Of course, anyone who has relevant data can decide to share it with the government or the public voluntarily – as long as they respect the rights of third parties. For example, a car manufacturer, as the de facto data holder, could decide to make more of the (non-personal) mobility data from its cars available to third parties. If this data is combined with freely available data from local public transport, it can support intermodal transport and thus the transport transition. In order to support such voluntary measures, the EU legislator provides a corresponding mechanism in the form of the concept of “data altruism” (Art. 2 No. 16 DGA) in the DGA (Art. 16 to 25). A first step in the right direction.
Mandatory Data Sharing in Cases of “Exceptional Need”
Nevertheless, data remains an economic good for private actors, and the more exclusive it is, the more valuable it is to a company. If the decision to release their data were left solely to their discretion, the benefits that data can actually provide would remain underexplored. Following this logic, the voluntary mechanisms of the DGA are complemented by binding obligations to provide data in Chapter V of the Data Act (Art. 14 et seq. DA).
However, it does not open up data of public interest unconditionally. The basic requirement is an “exceptional need to use the data” (Art. 14, 15 DA). This may result primarily from a public emergency (Art. 15 para. 1 lit. a DA), e.g. a public health emergency, natural disasters or a cybersecurity incident (Rec. 64 DA). Here, the EU legislator has translated the lessons learned from the coronavirus pandemic into concrete legislation.
If there is no emergency but an exceptional need (e.g. the recovery from a public emergency), the state may still access private (non-personal) data, but has to abide by the principle of subsidiarity (Art. 15 para. 1 lit. b ulit. ii DA). It must first exhaust all possibilities of obtaining the required data by other means (e.g. by generating it itself or acquiring it for a fee).
What both forms of data access have in common is that they are limited in time and scope (Art. 15 para. 1 DA). They only help to meet the demand for data in the public interest in specific situations that have already occurred or are imminent. The Data Act is therefore still very restrictive and does not establish permanent data flows between private companies and the state in general matters of public interest. Ultimately, (digital) civil society does not benefit from the data provided either, as the Open Data Directive does not apply (Art. 17 para. 3 s. 2; Rec. 70 DA). It may therefore only be used internally within the state and may not be made freely accessible on a platform or on request.
Need for Permanent Open Data Flows in Environmental Protection
This poses challenges for one of the most pressing tasks of our time: environmental and climate protection. If you want to make environmentally relevant decisions, you have to consider not only the present, but also the future. This requires comprehensive, up-to-date and complete information, irrespective of specific already occurred situations. Prevention is the key. In particular, the aim is to prevent damage to the environment or dangers emanating from it in advance. This ex ante approach is expressed especially in the precautionary principle (Art. 191 para. 2 TFEU).
Due to the complexity of the ecosystem, prevention is only possible where high-quality and quantitatively sufficient data is provided – including from private actors. This is all the more devastating as an incomplete database can be particularly damaging. Extreme weather events, which have become more frequent in recent years, illustrate this point: heavy rains, landslides, hail and gusts of wind not only cause billions of euros of damage, but also pose a direct threat to human life. Open public and private (environmental) data can help to better predict such threats in the future. However, this is hardly possible with the current data access rights under the Data Act, as these are not designed for permanent data flows in advance, but rather to support the fulfilment of public tasks after the event. Moreover, the Data Act does not establish an open data regime, which is not in line with the EU Commission’s promise in its Data Strategy 2020 to “make more data available and improving the way in which data is used to address societal, climate and environmental challenges”.
Conclusions and Outlook
It is right to encourage voluntary data sharing through the DGA and to use data to support reactive action in acute emergencies with help of the Data Act. However, it will be equally important in the future to further extend data access obligations to unlock the potential of data for the public good in a preventative way (e.g. in the area of environmental monitoring). Even though data legislation is still very young and not yet fully in force, European and national legislators should not see it as a revolution, but as the first step in an evolutionary process. Given the fundamental challenges facing our society in the area of environmental and climate protection, the question of the extent to which environmental data should be freed from its current data silos must continue to be asked.
Zitiervorschlag: Roeingh, Nik, Unlocking (Environmental) Data – State of Play and Challenges, JuWissBlog Nr. 58/2024 v. 29.08.2024, https://www.juwiss.de/58-2024/.
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