Data ACT to abolish arbitrary and artificial egress fees; clarify concept of functional equivalence and prohibit proprietary software lock-in the cloud

Feb 9, 2023 | News

CISPE calls on the EU legislators, Parliament, Member States and Commission, to abolish arbitrary and artificial egress fees; clarify the concept of functional equivalence and prohibit proprietary software lock-in the cloud to the benefit of fair competition and users’ freedom of choice

CISPE supports proposals to phase out and abolish any switching fees for data transfer, also known as egress fees, that are untransparent, unpredictable, arbitrary or excessive. Such random fees could inhibit customers from switching to another data processing service. Before entering into a cloud service contract, any switching fees must be made transparent, predictable, cost-based and commercially reasonable. Consequently, customers will be empowered to make the best-informed choices to meet their requirements.

The concept of functional equivalence in the Data Act remains technically unclear and creates legal uncertainty. This concept should be further specified since it adds only complexity and could result in less choice and new compliance cost for customers. Cloud services from different providers are not technically nor operationally equivalent and there is a lot of granularity in functionality and design even between at first glance similar services. For example, there are dozens of different database types. The variety of services and hence limitations to define similar services is also acknowledged by ISO/IEC 19941:2017.

Finally, data processing services portability rules in the Data Act should be complemented by additional principles aiming at eliminating unfair software application lock-in practices imposed by some legacy software gatekeepers. If customers are locked-in proprietary application services without the possibility of porting their own software to competing data processing services, the Data Act objectives of supporting data portability and switching providers are at best wishful thinking.

For a more detailed CISPE view on the Data Act, please refer to our position published December 2022.