Comparative study on cloud computing contracts
The Commission launched a comparative legal study on cloud contracts as a follow-up to its Communication of 27 September 2012 "Unleashing the potential of cloud computing in Europe (pdf)". The study was carried out by DLA Piper.
This study provides an overview over legislation, case law and administrative guidelines applicable to cloud computing contracts. It explains how the existing specific and/or general legal principles apply to certain key contractual issues.
The study is carried out in three work packages. The first work package provides a general overview of relevant legislation, case law and administrative guidelines in relation to cloud computing contracts in 27 EU countries and the US level.
Under work package 2, eight countries out of this group were selected to be further analysed during work package 3. The study investigates whether key contractual legal issues which are typically mentioned in relation to the cloud, are adequately dealt with by existing national law or case law, or, as the case may be, by guidelines issued by administrative authorities.
Key issues are the legal qualification of a cloud contract, the description of the service and service level agreement, acceptable use policy, data protection, intellectual property issues in the cloud, warranties and liability, termination of the cloud contract and its consequences, unilateral modification of the cloud contract, security requirements in the cloud.
The study concluded that in general, no specific "cloud laws" exist in the 28 investigated countries. Notwithstanding the foregoing, many sector-specific regulatory initiatives (either issued by administrative or supervisory authorities or by the industry itself) have nonetheless been issued which may further fuel the drive towards national cloud regulations.
Some of these initiatives are binding, such as the guidelines issued by several financial supervisory bodies, whereas the guidelines of data protection authorities may not as such be binding but nonetheless tend to lead to a best practice standard. Not many "cloud cases" have been reported. However, there are several interesting cases which will apply by analogy to a cloud computing.
The study is published in the EU Bookshop
With a view to taking forward the Commission's work on cloud contracts for business users announced in its Communication of 19 April 2016 on "European Cloud Initiative - Building a competitive data and knowledge economy in Europe", the Commission intends to launch a study aiming at assessing problems that small and medium-sized enterprises still encounter in relation to cloud computing contracts, as well as the resulting economic detriment, including in terms of impact on growth and jobs.
Study on the economic detriment from unfair and unbalanced cloud computing contracts
The Commission launched a study on the economic detriment to SMEs arising from unfair and unbalanced cloud computing contracts. The study was carried out by Ernst and Young.
This study aims at providing a better understanding of the EU SMEs’ usage of cloud computing during the period 2016-2017, and in particular at investigating the most frequent contract related problems encountered by SMEs in relation to the most contracted cloud computing services and the economic detriment arising from those problems. The collected data were used to quantify the financial consequences of contract related problems at micro level (i.e. at the SME level) and to estimate the resulting impacts on GDP and employment at macro level, as well as to provide a qualitative analysis of the effects on market functioning.
The study will be published in the EU Bookshop
In the meantime, you can preview the study here.