Policy Briefing — EU Data Act fairness supervision pushes SME contract remediation
National competent authorities are preparing Data Act Chapter IV supervisory programmes, making June 2025 the final window for organisations to remove unfair clauses and evidence SME-friendly compensation models before the 12 September enforcement date.
Executive briefing: Regulation (EU) 2023/2854 (the Data Act) applies from 12 September 2025. Chapter IV renders certain unfair contractual terms non-binding when a stronger counterparty imposes them on EU small and medium-sized enterprises (SMEs). Member State authorities have signalled supervisory reviews in Q3 2025, so legal and procurement teams must finish clause remediation, compensation modelling, and complaints handling playbooks by June.
Fairness obligations
- Prohibited terms. Articles 44(2) and 44(3) void clauses that exclude liability for gross negligence or wilful misconduct, allow unilateral interpretation, or impose exclusive rights over jointly generated data.
- Presumed unfair terms. Article 45 lists conditions presumed unfair—such as unbalanced indemnities or unilateral termination rights—unless the data holder proves they are not contrary to good faith.
- Transparency duties. Article 44(1) requires the imposing party to provide clear summaries of contract terms and dispute routes so SMEs can assess obligations before agreeing.
Program actions
- Contract inventory. Catalogue all EU data-sharing, platform, and product telemetry agreements involving SMEs; flag clauses that fall within Article 44’s black-list or Article 45’s grey-list categories.
- Compensation governance. Document cost-based pricing logic, rebates, and monitoring dashboards that demonstrate compliance with Article 14’s proportionality requirements when SMEs are charged for access.
- Complaint handling. Stand up escalation workflows that log SME fairness complaints, remediation commitments, and regulator engagement artefacts within 30 days.
Enablement moves
- Publish a clause fallback library aligned to the Commission’s fairness guidance so negotiators can swap unacceptable terms quickly.
- Brief boards and audit committees on remediation status, high-risk contracts, and the evidence packs prepared for national competent authorities.