Un­fair con­trac­tu­al terms

• Who and which contracts and contractual terms does the unfairness control cover?
• What happens if unfair contractual terms are used?
• Which contractual terms should be considered unfair?
• Recommended model contractual terms

The Data Act provides for a comprehensive control of the content of contracts related to data use and sharing between enterprises to prohibit unfair contractual terms that have been unilaterally imposed on one contracting party. The aim is to make it easier for enterprises, in particular SMEs, to access data in situations where the data holder is in a stronger negotiating position.

Who and which contracts and contractual terms does the unfairness control cover?

The unfairness control covers contracts between enterprises that relate to accessing and using data or to liability and remedies for the breach and termination of data-related obligations. Contractual arrangements that deviate from the protective criteria in Article 13 of the Data Act are invalid.

The unfairness control under the Data Act only applies to contracts between enterprises. It is similar to the control of general terms and conditions that is provided for by German law (section 307 et seq of the Civil Code).

The unfairness control only applies to contractual terms that have been “unilaterally imposed” by one contracting party on the other contracting party. A contractual term is considered as “unilaterally imposed” if one contracting party has proposed the term and the other contracting party cannot influence its content despite an attempt to negotiate it. An attempt to negotiate is considered to be a request to change the element of the contract. It is not relevant whether or not the party is actually willing to negotiate, unlike under the framework of section 305b(1) sentence 3 of the German Civil Code. The contracting party that proposed the contractual term bears the burden of proving that the term has not been unilaterally imposed. Contractual terms that the contracting parties have negotiated and agreed on in modified form are therefore not considered as having been unilaterally imposed. Contractual terms that have been supplied by only one contracting party but that were then accepted by the other contracting party are not subject to the unfairness control either.

The unfairness control does not apply to contractual terms defining the main subject matter of a contract or to the adequacy of the price for the data supplied in exchange.

The unfairness control applies from 12 September 2025 to contracts concluded after 12 September 2025. It applies starting from 12 September 2027 to contracts that were concluded on or before 12 September 2025 and that run either indefinitely or at least until 11 January 2034.

What happens if unfair contractual terms are used?

In accordance with Chapter IV of the Data Act, unfair contractual terms that have been unilaterally imposed on one enterprise are not binding. If a contractual term is unfair, the whole term cannot be applied. It is generally not possible to consider part of a contractual term as inadmissible and part as admissible and apply just the part that is admissible. The contracting party that is in a stronger position therefore bears the risk of using unfair contractual terms. This aims to minimise the incentive to use unfair terms. The remaining terms in the contract are still generally applicable and binding provided that they make sense without the invalid term. The whole contract is only invalid in exceptional cases. The general aim is to ensure that both contracting parties can rely on the continuation of the contract.

Which contractual terms should be considered unfair?

According to Article 13(3) of the Data Act, a contractual term is unfair if its use “grossly deviates from good commercial practice in data access and use, contrary to good faith and fair dealing”.

This general clause is substantiated by a list of contractual terms that should always be considered unfair (“blacklist”, Article 13(4) of the Data Act). These include terms whose object or effect is to exclude or limit the liability of the party that unilaterally imposed the term for intentional acts or gross negligence.

The general clause is also substantiated with a further list of terms that are presumed to be unfair (on the basis of a disputable presumption) (“greylist”, Article 13(5) of the Data Act). These include contractual terms whose object or effect is to inappropriately limit remedies in the case of non-performance of contractual obligations or extend the liability of the enterprise upon whom the term has been unilaterally imposed. An enterprise wishing to apply a term that is presumed to be unfair can dispute the presumption and prove that the term is not unfair.

Recommended model contractual terms

The European Commission recommends using its non-binding model contractual terms for data access and data use.

The Federal Ministry of Agriculture, Food and Regional Identity recommends the use of the non-binding model conditions for contracts relating to agricultural data of smart agricultural machinery for the agricultural sector.