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Legal issues of digitalisation in Europe

  • Text
  • European
  • Digital
  • Liability
  • Digitalisation
  • Ownership
  • Businesseurope
  • Noerr
Europe needs better rules for the digital revolution of the economy. Businesses want a standardised, EU-wide legal framework and room for contractual solutions when dealing with data. This emerges from a cross-European survey carried out by Noerr LLP and BusinessEurope, the European umbrella association of national industrial and employers' associations. Business leaders from companies in 20 different countries were interviewed.

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Cloud Cloud solutions provide a huge degree of democratisation of hosting space. Small and medium-sized companies can use the same software services as large companies. In the past, large companies had a bigger IT advantage. With clouds, hosting space is cheap, and it is available “off the shelf” and in all sizes. Even very small companies can provide high-quality handling of processes and deliver standardised products such as platform as a service (PAAS), software as a service (SAAS), or infrastructure as a service (IAAS). 41% of surveyed companies already use more cloud services than on-premise software. In this relation, business leaders make it very clear that they want to be able to choose the country in which their data is stored or processed. The ability to select a country or region is a very or extremely important feature to 68% of the respondents. While 27% prefer their cloud provider to be located in their own jurisdiction, 50% want their provider to be located in the EU. Whereas most business leaders have a clear preference, 20% do not care where their provider is located. Only 3% prefer their cloud provider to be located globally such as the US. 17% 0%-24% What is the proportion of cloud services in comparison to on-premise software in your company at the moment? 34% 24% 25%-49% 50%-74% 75%-100% 24% Where do you prefer your cloud provider to be located? 3% 27% 20% 50% EU National Global (USA) I don't care 16 BUSINESSEUROPE Legal issues of digitalisation in Europe 2017

BEST PRACTICES What companies need to implement their digital strategies Data Access International agreements/ privacy shield frameworks Business guidelines released by EU-authorities E-person liability Data Ownership Contractual solutions 4.0 3.5 3.0 2.5 Liability Cloud EU-legislation Technical norms and standards Standardised model contracts In order to implement your digital strategy, which regulatory measures, if any, would you prefer to coordinate...? Further development of the law by judicial decisions National legislation Self-commitment by industry n=75–96, scale: 1–5 (strongly disagree – strongly agree) Contractual Solutions It is strikingly clear that companies prefer contractual solutions to coordinate data ownership over EU legislation and technical norms and standard. This is true for data ownership as well as data access. In both cases, companies rely on the allocation of rights to da-ta granted by the freedom of contract. Contractual solutions always have the advantage of being able to provide custom-made solutions. Companies also confide in contractual solu-tions when it comes to allocating liability in case of a plurality of parties or complex value chains. While the European Commission is assessing “whether initiatives are needed to foster fair and balanced access to, and use of, data” 7 , the surveyed companies clearly state, that they prefer to coordinate data ownership and access in a business-to-business context rather on contractual basis only. EU legislation Where respondents indicate need for legislation, the preference is for EU-level regulation over national ones. With regard to the cloud, EU legislation is even first choice to coordinate related issues over international agreements/privacy shield frameworks, which are ranked third. Probably because companies assume that only regulation on an international level guarantees equality of competition. 7 European Commission: Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions: “On the Mid-Term Re-view on the implementation of the Digital Single Market Strategy”. 10.05.2017, p. 11. Legal issues of digitalisation in Europe 2017 17 BUSINESSEUROPE

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