Da­ta pro­cess­ing services and provider switch­ing

The Data Act requires providers of data processing services to remove any existing obstacles that customers may face when they want to use several services at the same time, switch from one provider to another provider offering the same service type or move to on-premises IT infrastructure. The rules apply to all typical cloud service delivery models such as IaaS, PaaS and SaaS.

The following applies additionally to IaaS:

Providers of IaaS are required to take all reasonable measures in their power to enable their customers, after switching to a new provider offering the same service type, to achieve functional equivalence in the use of their new service. In accordance with Article 30(1) of the Data Act, this specifically means that the source provider must provide adequate information, technical documentation and capabilities and, where appropriate, the necessary tools.

The following applies to PaaS and SaaS: 

Source providers of PaaS or SaaS must make open interfaces for their services available free of charge, both to their customers and to the new providers to whom their customers are switching. Source providers must also provide the documentation necessary to enable their customers and the new providers to use the interfaces.

Source providers must still guarantee interoperability for data portability on the basis of common specifications or harmonised standards. These specifications and standards are published in the central European Union standards repository for data processing services. Providers of PaaS or SaaS must use the specifications or standards for switching processes no later than 12 months after the specifications and standards have been published.

Providers must provide clear and comprehensible terms for provider switching in their contracts. Customers must be able to understand before concluding a contract which rights they have with respect to exporting data, terminating a contract and receiving assistance from a provider. This information must be available, for example, in general terms and conditions, in pre-contractual documentation or on a provider’s website.

All of the parties involved, including destination data processing service providers, must work together constructively to ensure that switching is completed effectively, data are transferred in time and continuity of the data processing services is maintained.

As technical conditions vary considerably in practice, it makes sense to distinguish between two switching scenarios: scenario A with a low level of technical complexity and scenario B with a high level of complexity.

Scenario A – low level of technical complexity

Scenario A is the standard case. Switching is technically feasible without a large degree of complexity.

1. Switching request/notice period

A customer notifies their provider that they want to terminate their contract or switch to another provider. In accordance with the notice period set in the Data Act, the provider then has a maximum of two months to make the technical preparations.

2. Transitional period

The technical switching process then begins. The process must be completed within a transitional period of 30 calendar days.
Important: A customer may extend the transitional period once for a period that they consider more appropriate, for example if they need more time for tests or preparations. This extension does not have to be based on specific technical reasons.
During the agreed transitional period, the data must be transferred, the necessary technical interfaces must be in place and the new provider must be able to put the applications into operation. The original service must still be accessible during this period.

3. Completion of switching and post-switching period

The data must remain retrievable from the old provider for at least 30 calendar days after the switching process has been completed. This enables final backups to be made or missing data to be added. The data must be erased after this retrieval period, unless there is a legal reason for retaining the data.

Scenario B – high level of technical complexity

In some cases, such as in the case of very complex IT environments, provider switching is not technically feasible within 30 calendar days. In this case, the Data Act allows the period to be extended.

1. Switching request/notice period

The following applies here as well: A customer notifies their provider that they want to terminate their contract or switch to another provider. In accordance with the notice period set in the Data Act, the provider has a maximum of two months to make the technical preparations. If the provider establishes that switching within the subsequent 30-day transitional period is not technically feasible, the provider must inform the customer within 14 working days and prove that switching within the period would not be technically feasible.

2. Alternative transitional period

If a provider proves that switching within the 30-day transitional period would not be technically feasible, the provider can extend the transitional period to a maximum of seven months.

Important: In this scenario as well, a customer can also voluntarily extend the transitional period for a period that they consider more appropriate for their own purposes, irrespective of any technical reasons.
During the agreed transitional period, the data must be transferred, the necessary technical interfaces must be in place and the new provider must be able to put the applications into operation. The original service must be maintained during this period.

3. Completion of switching and post-switching period

As in scenario A, the data must remain retrievable from the old provider for at least 30 calendar days after the switching process has been completed. The data must be erased after this retrieval period unless there is a legal reason for retaining the data.

The Data Act includes rules on switching charges, which are the charges that are imposed on users switching to a different provider. These charges will gradually be withdrawn:

• In the transitional period from 11 January 2024 to 11 January 2027, providers may only charge actual, direct costs.
• From 12 January 2027, no switching charges at all may be imposed.

Before entering into a contract, providers are required by the Data Act to give prospective customers clear information about the standard service fees for operation of a service and the reasonable compensation for early termination that may be imposed and about the reduced switching charges applicable during the transitional period from 11 January 2024 to 12 January 2027.