EU Data Act: New Unfair Contractual Terms In B2B Data-Sharing Agreements

In just a few weeks, the EU's Data Act will come into effect. Among its provisions, a new fairness regime governing contracts related to access to and use of data in B2B agreements. These rules introduce a new framework for data licensing contracts, and set new limitations on when and how certain terms can be imposed.

As we highlighted in our previous article, the Data Act (Regulation (EU) 2023/2854) prohibits certain unfair contractual terms in B2B data-sharing agreements: any clause concerning data access, use, liability, or remedies that is unilaterally imposed by one party is unenforceable if considered unfair.

What constitutes an unfair clause?

A clause is considered unfair if it significantly deviates from established principles of good commercial practice regarding data access and use, thereby breaching the standards of good faith and fair dealing. In practical terms, if a clause creates a "substantial imbalance" to the detriment of the party bound by