Das auf Datennutzungsverträge anwendbare Recht

The Law Applicable to Data Sharing Agreements. A Critical Analysis of the Classification of Article 3 GDPR and Article 1(3) Data Act as Conflict-of-law Rules under Private International Law. The European legislature has issued a series of legal acts aimed at creating a European data space. Common to these instruments is that they establish a regulatory framework for this data space but leave it to be filled by the relevant actors through a network of contracts. The acts include only isolated requirements for these contracts, and their conclusion, validity, and termination is otherwise governed by national law. With regard to such data use contracts, harmonized private international law does not yet provide any specific rules. The two central legal acts - the GDPR and the Data Act - contain provisions only on the territorial scope of application. Against this background, it is subject to debate whether the general conflict-of-law rules of the Rome I and Rome II Regulations apply or are superseded by conflict-of-law rules »hidden« in the rule on the scope of application. Practical differences arise particularly with regard to the admissibility of choice of law and the applicability of European data law in relation to third countries. The analysis shows that a reliable determination of the applicable law requires distinguishing between the existence of rights to data, contracts relating to data, and breaches of obligations relating to data. The article advocates application of the Rome Regulations on determining the law applicable to contracts and torts with adaptation to the specific characteristics of the digital space.