Assessing the Regulatory Future of the Digital Single Market: An Interdisciplinary Study of the Law and Legitimacy of Business-to-Government Data Sharing

Abstract

The development of a Digital Single Market and the establishment of data as the ‘fifth freedom’ has called for new policymaking and legislation measures that aim to ensure an open and thriving data economy. Data processing is not only favorable for businesses, as it also has the potential to contribute to massive welfare gains. The European Commission began assessing the opportunities for a common data sharing practice between businesses and governments (B2G) in 2017, resulting in a comprehensive expert group report. There are, however, some obstacles to the implementation of a B2G framework at the EU-level. The overall characteristics of the EU are not necessarily in favor of legislations governing mandatory public sector access to data. In a twofold study, this paper investigates the current judicial system that apply to B2G sharing. Although no legislation aims at B2G directly, various provisions are applicable to study and address the legal aspects of B2G data sharing. Furthermore, a political assessment of EU governance and legitimacy addresses from a stakeholder perspective, the justifications for intervention. I argue that the overall nature of the European Union differs from the national state, and as such, the legitimacy of judicial intervention and centralized governance of data sharing for the common good is not sufficient. Moreover, a variety of barriers as well as opportunities are detected that may contribute to further addressing of data sharing as a voluntary practice. The findings suggest that the justifications of providing data access for public interest in a harmonized legal framework are not legitimate due to the regulatory and institutional characteristics of the EU. Further, the application and potential advancement of public-private partnerships are investigated and suggested as the feasible alternative to harmonized legislation, as they preserve the interests of both parties while staying within the scope of the single market.