The EU Commission has released its draft guidelines on calculating “reasonable compensation” for mandatory data sharing under the Data Act (the Draft Guidelines). While the Draft Guidelines offer some clarity, they also present complex challenges for businesses. Following the EU Commission’s webinar on 10 February 2026, and the closure of the public consultation on 20 February 2026, it is essential to understand the nuances and potential pitfalls of the Draft Guidelines to develop effective compliance and risk management strategies. The Data Act’s ambition to strengthen the EU data economy by removing barriers to sharing while safeguarding investment incentives now hinges on the practical – and often contentious – interpretation of “reasonable compensation”.
The FRAND dilemma in data sharing
Chapter III of the Data Act establishes the rules applicable to business-to-business relations, where data holders are obliged to make data available pursuant to Union law, either under Article 5, or under other applicable law. Specifically, Article 8 states that data holders and recipients shall agree on data-sharing arrangements that are based on “fair, reasonable and non-discriminatory terms and conditions” (FRAND) and “in a transparent manner”. Although the concept of FRAND terms is well established in the space of standard-essential patents (SEP), the Draft Guidelines caution that applying these principles directly to data sharing to comply with a regulatory obligation is not straightforward. The nature of data as a dynamic and commercially sensitive asset, combined with the technical cooperation required from the data holder, creates a fundamentally different scenario than that of SEP licensing.
Article 9 then focuses specifically on what data holders can charge for sharing their data, explaining that the right to “reasonable compensation” is essential to ensure that everyone benefits fairly from the data economy. However, the ambiguity surrounding what is “reasonable” and “non-discriminatory” introduces significant legal and commercial challenges.
Key principles from the Draft Guidelines
The Draft Guidelines confirm that, while compensation may be agreed on, it must be non-discriminatory and reasonable and may include a margin. This seemingly straightforward principle quickly becomes more complex when the specifics are considered:
- Strict cost limitation: Compensation must be limited to incremental and necessary costs directly linked to making data available. This includes costs for specific data formatting (if going beyond the obligation to make the data available in a common format), selecting data sub-sets (if not automatically extractable), transforming data to protect data subjects (e.g., anonymisation), and protecting commercially confidential data. The challenge for data holders is to meticulously distinguish these “incremental” costs (extra costs on top of normal business activities that arise due to a request) from their normal business activities.
- The optional and justified profit margin: A profit margin is optional and may be included, but it must remain reasonable and reflect “investments in the collection or production of data”. This creates a critical need for businesses to implement clear internal accounting to justify any margin based on genuine investments in data generation, rather than merely operational costs.
- Preferential treatment for SMEs and not-for-profit research organisations: The Draft Guidelines create a complex, dual-track pricing system that places an additional burden on data holders. Under Article 9(4), SMEs and not-for-profit research organisations are granted significant advantages. They can only be charged for the costs incurred in making data available, meaning no profit margin can be applied. Furthermore, their compensation shall be based only on the costs directly attributable to the individual request, which excludes upfront and overhead costs related to setting up data sharing mechanisms (e.g., interfaces, software and connectivity). This dual-track pricing model introduces substantial complexity for data holders who must develop different cost recovery strategies for different types of recipients, if they choose to charge for data access.
- Explicitly excluded costs: The guidelines firmly state that overhead, sunk costs, speculative risks, or ordinary business expenses would be illegitimate to pass on as access-related charges. This narrow definition requires data holders to precisely isolate and justify the costs directly resulting from the data access request.
Focus on specific challenges
While the Draft Guidelines provide detail, the remaining ambiguities still leave uncertainty and require careful strategic planning for data holders that wish to charge for data sharing with third parties.
- Defining “necessary” and “incremental” costs
Article 9(2)(a) states that costs must be incremental, objective, measurable, and proportionate. This leaves significant room for debate. Storage costs, for example, are only chargeable if linked to making data available to data recipients (e.g., where the data holder chooses to store the data in a dedicated IT environment for the purpose of making it available to the recipient, independent of the IT environment used by the data holder for their own purposes). Similarly, only incremental confidentiality measures (such as tailoring NDAs or conducting recipient-specific audits) are recoverable. Organisations must therefore establish robust, auditable cost categories that can withstand scrutiny.
- Balancing disclosure with confidentiality
To allow data recipients to assess whether the compensation agreed with the data holder is non-discriminatory and reasonable, Article 9(7) requires that the data holder provides the data recipient with information on the “basis for the calculation of the compensation”, which should be provided “in sufficient detail”. The Draft Guidelines clarify that Article 9(7) is not meant to serve as a general transparency obligation, but rather a tool designed to prevent “abusive pricing practices”, which means that the information concerning the calculation of the compensation shall be provided to the data recipient upon request only. The challenge intensifies when data holders must protect commercially sensitive information or trade secrets, while required to provide the information with the appropriate level of granularity which allows the data recipient to assess the data holder’s approach to compensation. The Draft Guidelines suggest providing “summaries, cost categories, or standard templates with example calculations” to show pricing logic, rather than disclosing sensitive internal details. In situations involving competitors, the guidelines explicitly warn against potential infringements of Article 101 TFEU, recommending limiting disclosure to what is necessary to comply with Article 9(7), and the use of “clean teams” on the recipient end, to manage the exchange of sensitive information. The recommendation to use “clean teams” on the recipient's side underscores that competition-related considerations may need to be considered in certain situations.
- Managing demand uncertainty and dynamic pricing
A key practical challenge in determining “reasonable” compensation for each individual recipient lies in the uncertainty regarding the anticipated volume of access requests, making it difficult to calculate the pro-rata allocation of the relevant costs and investments. In recognition of demand uncertainty, the Draft Guidelines propose amortisation models, i.e. defining reasonable amortisation cycles, calculating pro-rata shares based on conservative estimates, or periodic adjustments to compensation rates. However, the latter increases the risk of “first-mover disadvantage” if early recipients pay disproportionately higher amounts. Organisations will therefore need to advise on robust methodologies for calculating pro-rata shares, as well as transparent adjustment mechanisms that prevent discriminatory pricing over time.
- Non-discrimination
While any compensation agreed between the data recipient and the data holder shall by “non-discriminatory”, the Draft Guidelines emphasise that differentiating between data recipients can be justified by “objective requirements”. Such objective requirements can include additional costs for security, compliance, or technical burdens (e.g., data format, volume or real-time access). Conversely, differentiation is illegitimate if it penalises a competitor, applies opaque criteria, or uses vague justifications such as “public interest”. Clear, documented policies and consistent application are required to ensure compliance and mitigate legal challenges.
Concrete implications
Where data holders choose to charge data recipients for making data available, they may consider integrating the following steps into their internal strategies to ensure that their compensation approach aligns with the requirements set out in the Data Act:
- Audit cost structures. Conduct a thorough review of data-related costs and categorise them strictly according to Article 9(2)(a) and (b). Identify investments in data generation versus mere data preparation. Be prepared to justify incremental and necessary costs with auditable definitions.
- Develop robust pricing models. Establish clear, auditable methodologies for calculating compensation, including for SMEs, as well as models for amortising one-off costs.
- Enhance transparency frameworks. Prepare for Article 9(7) requests by defining what information can be shared and in what aggregated format, as well as when to invoke protection for commercially sensitive data.
- Review data sharing agreements. Ensure that B2B data sharing agreements comply with FRAND principles, particularly regarding the arrangements for making data available to comparable categories of data recipients, and compensation clauses.
- Monitor and adapt. Due to the dynamic nature of data sharing and the possibility of periodic adjustments, compensation policies will require continuous monitoring and adaptation as market practices develop and case law emerges.
The “reasonable compensation” Draft Guidelines under the Data Act are a foundational element for Europe's data economy. While they aim to promote fairness and innovation, their practical application presents significant complexities that require careful legal navigation and proactive internal strategy. Data holders should adopt a proactive and strategic approach to protect their interests and ensure compliance does not come at the cost of their competitive advantage.
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