Spill-overs in data governance: Uncovering the uneasy relationship between the GDPR’s right to data portability and EU sector-specific data access regimes

A consensus is emerging that a flourishing European data economy requires effective portability of - and access to - data for individuals as well as businesses. Beyond the right to data portability introduced in the General Data Protection Regulation (GDPR), a number of data access regimes are being developed in the energy, automotive, payment and digital content/services sectors. By comparing the key aspects of these instruments (including their objectives, scope, beneficiaries, configuration and modalities), the paper analyses the relationship of these sector-specific regimes with the right to data portability of the GDPR. The paper identifies a set of possible unintended consequences – called ‘spill-overs’–between these regimes in relation to how they govern data sharing in the EU. These spill-overs might be positive or negative for the welfare of society. They can be of factual or legal nature and go both directions: from horizontal to sectorial instruments, and from sectorial to horizontal instruments. Some of the spill-overs are only a consequence of uncertainty and a lack of clear direction. The existence of spill-overs highlights that a ‘fragmented’ legislative strategy pursuing horizontal and sector-specific data sharing policies in parallel can expand or contract the original goals/scopes intended by the legislator. As spill-overs take place irrespective of whether policymakers consider them or not, legislators should be fully aware of them when they pursue a fragmented strategy for data sharing policies.