What’s Covered?
The report addresses contractual imbalances in B2B data-sharing and cloud computing arrangements, especially when SMEs negotiate with dominant cloud providers. The Expert Group was tasked by the European Commission to identify unfair contractual terms and propose best practices to enhance trust and fairness in data markets. It builds on stakeholder consultations and market evidence from 2020 to 2022, offering a rich mix of legal, technical, and policy insights.
The core of the report is structured into five chapters:
- Key Principles – Lays out fairness, transparency, and reasonable use as the foundational principles for B2B data use.
- Fair Contract Terms – Identifies potentially unfair clauses and explains why they cause imbalances, e.g., unilateral changes, vague SLAs, data lock-in, or IP overreach.
- Model Contract Clauses – Offers voluntary, example clauses to foster fairer negotiations, especially around access, usage rights, liability, and data portability.
- Cloud Contract Specificities – Focuses on cloud-specific risks like vendor lock-in, exit costs, service reversibility, and SLA asymmetries.
- Recommendations to the Commission – Suggests further regulatory or policy tools, such as non-binding standard terms or codes of conduct under the Data Act.
Overall, the report emphasizes voluntary harmonization, promoting a toolbox approach (principles + model clauses) without imposing new legal obligations. It’s closely tied to broader EU initiatives like the Data Act, Digital Markets Act, and Gaia-X.
Why It Matters? 💡
As cloud services become indispensable and data-sharing fuels innovation, the lack of negotiation power leaves SMEs vulnerable to exploitative terms. This report offers a timely corrective by promoting fair-play standards that are legally sound and industry-backed. It helps bridge the gap until hard law like the Data Act fully kicks in.
What’s Missing?
The report leans on idealized contract behavior and assumes both parties act in good faith. But it doesn’t offer concrete enforcement strategies if dominant players ignore these soft-law suggestions. There’s also limited guidance on dispute resolution or examples of actual litigation. Furthermore, while it addresses cloud contracts in depth, sector-specific considerations (e.g., health, finance) are largely absent, despite their critical role in sensitive B2B data flows. Finally, although the model clauses are a solid foundation, they lack commentary on how courts or regulators might interpret them in real disputes.
Best For:
Legal drafters, SME negotiators, digital policymakers, and privacy or AI governance experts seeking to future-proof their contracting strategies. Especially useful for teams building compliance frameworks under the EU Data Act or Data Governance Act.
Source Details:
European Commission (2022). Final Report of the Expert Group on B2B data sharing and cloud computing contracts. Brussels: Directorate‑General for Communications Networks, Content and Technology.
This report was authored by a multidisciplinary Expert Group comprising lawyers, industry representatives (including SMEs and large providers), digital rights organizations, and academics. Members were appointed by the Commission following a public call for applications. Notable contributors include Prof. Mireille Hildebrandt (legal tech), Dr. Jörn Erbguth (cloud legal frameworks), and stakeholders like the European DIGITAL SME Alliance and Gaia-X. The Commission served as convener but did not dictate the content, lending credibility and multi-stakeholder legitimacy to the recommendations.
