Abstract
This article examines the role of solidarity in shaping evolving EU data-sharing policies, with a focus on the Data Governance Act. It seeks to demonstrate how solidarity can articulate the boundaries of the concept of ‘general interest’, guide proportionality assessments in data-sharing decisions and inform harm mitigation strategies. The analysis reveals that solidarity not only broadens the understanding of general interest by emphasizing its collective benefits but also provides safeguards for societal vulnerabilities. In cases of tension, solidarity ensures that general interests are pursued while prioritizing the need to prevent and mitigate harm. Concluding, the article argues that solidarity offers a vital framework for reconciling the competing demands of data sharing and data protection by promising a balanced approach to the EU's evolving data governance landscape.
Introduction
The past decade has placed solidarity at the forefront of the EU's response to various crises, not only leading to an exploration of its normative impacts in areas where it is normativized but also revealing its relevance in new areas where it is not typically addressed, 1 such as data governance and digital innovation. In particular, the management of health emergencies during the pandemic revealed that data plays a central role both in making informed decisions about restrictions on freedoms and in driving innovations through health data utilization. This heightened awareness has intensified efforts to enhance data availability and accessibility, thereby laying the groundwork for innovative data-sharing frameworks that are oriented towards maximizing the collective benefits inherent in strategic data cultivation, where solidarity is likely to play a central role.
Most notably, the newly introduced Data Governance Act (DGA), 2 which is of central interest to this article, aims to maximize data sharing for the general interest of the public. It seeks to achieve this, first, by requiring public sector bodies to make certain types of protected data available for reuse, while ensuring the confidentiality of personal data through anonymization and of commercially sensitive information through modification, aggregation and secure handling. 3 Secondly, the DGA seeks to encourage the pooling of personal and commercial data through voluntary contributions, a process called ‘data altruism’. The legislative definition of data altruism is ‘the voluntary sharing of data on the basis of the consent of data subjects to process personal data pertaining to them, or permissions of data holders to allow the use of their non-personal data without seeking or receiving a reward that goes beyond compensation related to the costs that they incur where they make their data available for objectives of general interest as provided for in national law’. 4 General interest grounds, which go beyond the narrow public interest of national security, are exemplified as ‘healthcare, combating climate change, improving mobility, facilitating the development, production and dissemination of official statistics, improving the provision of public services, public policy making or scientific research purposes in the general interest’. 5 It is important to highlight that data sharing under data altruism encompasses both non-personal data and personal data, provided that the data subjects have consented to its sharing. 6 Thus, fundamentally aiming to set up a framework to promote data sharing within established constraints, the DGA contrasts with the General Data Protection Regulation (GDPR), 7 the primary goal of which is to ensure data protection but which also permits the use of personal data for public interest grounds. 8
This article examines the evolving prominence of data sharing as a primary objective within the EU legislative framework and addresses how solidarity as a legal principle underpins data sharing and how it can influence the implementation of the law on data governance, a question that has not yet been explored. There is a growing body of literature that examines the emerging law concerning data governance from a legal perspective, though primarily focusing on its compatibility with the existing data protection legal framework. 9 Our inquiry, however, deals with a different question: how solidarity, now articulated as a constitutional principle, might influence the evolving legal architecture of data governance. Although the literature has begun to explore data governance through the lens of solidarity, 10 the focus of these studies has primarily been on presenting an understanding of data governance from a solidarity perspective, rather than examining how solidarity might be implemented as a normative principle in practice – a gap this article seeks to address.
The objective of the article is threefold: First, we aim to show the central role data sharing assumes in data governance alongside data protection, which has been a primary objective of data governance. We assert that data sharing as a primary goal is grounded in the function of data in serving diverse interests in society. Second, we aim to explain how the principle of solidarity relates to the law on data sharing. We contend that data sharing, when aimed to serve societal needs and necessitating some level of sacrifice from the data subject, is fundamentally driven by the principle of solidarity. The data governance framework of the EU, both in voluntary and mandatory forms, encompasses data sharing that is underpinned by solidarity. Third, based on this conclusion, we seek to reflect on how the nexus between data sharing and solidarity matters by exploring the ways in which solidarity is understood not merely as a functional necessity for advancing collective societal interests but also as a value-driven principle that addresses societal vulnerabilities. We conclude that the importance of reading and implementing data sharing laws resides in its capacity to offer a value-driven framework that ensures the fair distribution of the costs and benefits of data sharing.
The structure of this article unfolds as follows. Section 2 examines the development of data governance within the EU and shows how data sharing has shifted from merely a legitimate interest to a central objective in its own right, alongside data protection. Section 3 examines data sharing as framed by the DGA to explain how and to what extent this concept embodies the principle of solidarity. Section 4 examines the potential implications of adopting a solidarity-based approach to data sharing by analysing how this principle can influence the implementation of the new data governance framework. Section 5 concludes.
Evolving paradigms in EU data governance: Data sharing as a primary objective
Promoting data sharing has not traditionally been a fundamental goal of data governance. On the contrary, its primary goal has centred on protecting personal data, which inherently sets out principles for data sharing. However, the significance of data sharing has come to the fore in various contexts since the EU intervened in regulating personal data processing. In what follows, we aim to explain the shift in the orientation of data governance within the EU as embodied in the DGA, which now seeks to balance the dual objectives of data protection and facilitating data sharing.
In the initial phase of data governance, the EU had to walk a tightrope of recognizing the economic value of personal data while addressing emerging concerns over the abusive use of data to the detriment of individuals’ fundamental rights. Legislative efforts at the Member States’ national level to limit governments’ collection of personal data and initiatives at the Council of Europe led the EU to put personal data protection at the core of data governance. 11 This is evident in the legal basis of the EU data protection legislation. Today, the GDPR has two objectives, with one objective surpassing the other over time. 12 It serves the single market with the premise that fundamental rights protection, particularly the rights to privacy and personal data protection, will be observed in data processing operations in each Member State. 13 Through setting a level of fundamental rights protection that the Member States must abide by, the GDPR eradicates the potential discrepancies in the treatment of personal data and allows its free flow within the single market. To this aim, each data processing operation must comply with data protection principles to be deemed lawful. 14 This means that personal data cannot be shared with others unless the sharing is based on a lawful ground (e.g. consent, public interest, existence of a vital interest) and is compatible with the purpose for which the data was initially obtained. 15 The objective of protection of data is strengthened in the EU constitutional order with the recognition of personal data protection as a fundamental right in a provision (i.e. Article 8) separate from the right to privacy (i.e. Article 7) under the Charter of Fundamental Rights of the EU (EU Charter). 16
While the initial position within the EU data governance was restricting data sharing, different values attributed to data have pushed the initiatives to promote its circulation high in various EU political and legal agendas. The first and most controversial initiatives came in the law enforcement domain. Especially after the terrorist attacks in the early 2000s in the US and on Member States’ soils, the Member State governments demanded data access for law enforcement reasons, particularly in irregular migration and crime prevention. A flurry of legal data-sharing obligations for the private sector, ranging from electronic communications providers 17 to the airline sector 18 to banks, 19 has emerged, with the public authorities on the receiving end. 20
Beyond these security considerations, the second phase of relaxing the data sharing restriction ensued based on the contribution of this sharing to the economy. The GDPR, much like its predecessor, the Data Protection Directive, 21 acknowledges the economic value of data, particularly in the context of single-market integration. However, the continued growth of the data economy has prompted the EU to consider additional strategies for optimizing data usage. Advancements in digital technology and infrastructure allowed the collection of strategic data in mass, which has been crucial in cultivating a robust data economy. 22 Over time, the foundation of the digital economy has shifted from merely delivering services to incorporating the operationalization of data generated by these services. 23 In turn, this data has pushed the advancement of new digital technologies and innovations, providing a competitive edge to companies that own significant data resources. 24 These developments have enabled data-driven companies to create entirely new categories of products and services and to forge a unique economic field where data is actively collected, processed and traded, establishing it as valuable capital. 25 Given the strategic value of data, its production has become a key driver of profitability in the digital economy, 26 which fosters a thriving data-centric economic sector.
In response to the economic benefits of better cultivation of data, since 2014, the European Commission has redirected its regulatory focus to leverage the strategic potential of data and stimulate a data-driven economy. 27 The policy for data sharing shifted to non-personal data, with the Commission stressing in its 2017 Communication the problem of its underutilization and inadequate sharing of non-personal data, particularly in the context of innovation, as a substantive policy concern. 28 This issue has precipitated the enactment of legislation to ensure the free flow of non-personal data and regulate the conditions under which data localization may be permitted within the EU. 29 The focus of data sharing in this new context of data sharing was to promote a data economy of non-personal data by reducing the national data localization requirements. 30
The third phase of data sharing, however, is attributed to the digitalization that has spread beyond economic structures. Data (including personal data) has been viewed as a common resource for pressing societal needs. 31 Particularly in response to the COVID-19 pandemic, its societal value has received heightened recognition not only in digital and medical innovations but also in informed decision-making in the public sector. Today, the relevance of data spans multiple sectors, including scientific research, health, energy and environmental sectors, where the demand for data access continues to surge, highlighting its relevance and importance in serving the ‘public good’. 32 In this new phase, the focus has been shifted to sharing data – by making it more available and accessible – to benefit the ‘general interest’, which includes its commercial and public interests at large.
Finally, the concept of ‘digital sovereignty’ has taken centre stage, which has further amplified the strategic value of data in contemporary policy making. This ambition is largely driven by a desire to reduce reliance on external jurisdictions and establish greater autonomy within the digital sphere. Although both its feasibility 33 and normative appeal 34 remain subjects of considerable debate, the aspiration for digital sovereignty is driven by the EU's dependency on technologies developed outside the EU. The research, indeed, reveals pronounced disparities in digital capabilities across nations, with a pronounced dependence by many European countries on external technological infrastructures. 35 The heightened awareness of existing dependencies has driven the pursuit of digital innovations and, along with it, a desire to assert greater control over data, often regarded as the raw material for digital technologies. 36 For the EU, there is also a strong impetus to gain control of its data space to uphold European core values, 37 particularly in response to the international data protection scandals. 38
With the intensified focus on maximizing the potential of data, the time was ripe for a new data governance strategy for the EU that started the final phase. The 2020 European Digital Strategy framed a revamped approach to data sharing and foregrounded several legislative instruments to serve this new perspective, 39 including the Data Act 40 and DGA. 41 Distinct from previous phases, this phase adopts a more permissive language for data sharing, resulting in an evolving legislative framework that is strategically designed to optimize data accessibility and maximize the benefits of effectively cultivating data, not only in economic terms for business but also as a society, in general, across the EU.
But is this a shift in the true sense, given that has never been an outright limitation of sharing personal data and the EU data protection acquis had already allowed for some level of data sharing? It is true, every processing of personal data is a potential limitation of the data protection right as protected under Article 8 of the EU Charter. However, as a non-absolute right, the protection of personal data allows for limitation so far as it pursues a legitimate purpose or is based on consent. 42 At the regulatory level, the GDPR has already set a framework to sustain data sharing for different purposes, including public interest and scientific research directly related to the data sharing carried out for altruistic purposes under the DGA. This led to comparing both legislation at the micro level, questioning the added value of the data altruism scheme under the DGA. 43 To reconcile the concerns over potential conflicts with the GDPR, the DGA explicitly acknowledges the latter's primacy in matters of personal data protection. 44 Yet, as this section has sought to highlight, the DGA distinguishes itself with an intensified commitment to fostering data sharing – a commitment that, while mindful of established data protection norms, places new emphasis on the proactive facilitation of data access and exchange. The added value of the DGA, therefore, lies in introducing data sharing not just as a legitimate goal but as a primary one, which is based on benefiting the general interest of society at large. As mentioned earlier, the GDPR facilitates data sharing but on the condition that it observes data protection principles to ensure that the limitation of the right to data protection pursues a legitimate aim and is a proportionate action. Thus operational differences exist between the DGA and the GDPR, where the former emphasizes data sharing while the latter focuses more rigorously on data protection. 45 At the same time, the objective of fundamental rights protection that has already been interwoven in the EU data governance would require the DGA to strive for a balance between data sharing, as promoted in the data altruism scheme, and the protection of the fundamental rights, 46 where we posit that solidarity can play a critical role.
Nexus between data sharing and solidarity
Although a detailed exploration of solidarity as a constitutional principle is beyond the scope of this discussion, 47 understanding the connection between data sharing and solidarity necessitates a brief explanation of its meaning.
Solidarity is deeply embedded within the EU Treaties, permeating from the aspirational statements set forth in the preambles, 48 through the general objectives of the Union, 49 and into the core fundamental values of the EU. 50 It further extends to sector-specific provisions of the Treaties that impose binding obligations, 51 affirming beyond doubt its integral role within the EU legal order. Reflecting the significance accorded to constitutional provisions, the fundamental role of solidarity in EU legal order has been acknowledged by the CJEU. In judicial proceedings, it functions both as a protective ‘shield’, supporting Union acts that introduce new obligations of solidarity, 52 and as a ‘sword’, providing a standard for the legality of both EU and national actions in constitutional review. 53 Notably, the General Court acknowledges ‘solidarity between the Member States’ as a general principle of EU law. 54 Moreover, the Court of Justice categorizes it as a fundamental principle of EU law, 55 which arguably allows using this principle beyond inter-state relationships. The overarching nature of solidarity is particularly crucial for our analysis here. This is because it renders the principle normatively significant in fields where it is not explicitly mandated as a constitutional obligation, including data governance and digital transformation.
Considerable ambiguity persists regarding the precise meaning of this principle, though recent judgments have begun to shed light on its substantive content. Solidarity can be best conceptualized as a hybrid principle, supported by both instrumental and value-based reasoning. In the Court's jurisprudence, it is predominantly interpreted through an instrumental lens, embodying the notion of sacrificing immediate self-interest in pursuit of shared objectives that yield long-term collective benefits – a theme recurrent throughout EU jurisprudence. 56 It serves to substantiate demands for sacrifices for the benefits that are gained from the attainment of common objectives. 57 Thus it is characterized by not only supporting others through forfeiting self-interest but also by contributing towards common goals from all benefits. As the architecture of EU constitutionalism has been predominantly shaped around economic objectives, the term ‘solidarity’ has evolved into a central motif in legitimizing the demands of the process of economic integration and addressing the challenges that arise with it. The functional imperatives associated with establishing an economic union, such as a single market, the absence of internal borders, and a unified currency, necessitate a foundational level of solidarity. Therefore, the concept has anchored itself at the heart of functional integration. 58 It is largely built on an instrumental rationale that a commitment to economic integration aimed at collective well-being and prosperity often requires individual Member States’ immediate sacrifices to attain common objectives.
Value-driven forms of solidarity, such as social solidarity, also exist under EU law, though lagging behind. 59 The EU primary law, though not presenting an explicit obligation, includes provisions that reflect a value-based understanding of solidarity. For instance, in the preamble of the TEU, solidarity extends beyond a mere principle to become a declarative force, with the Member States committing to a renewed phase of European integration. This commitment involves a deepening of solidarity among their peoples, mindful of their historical, cultural and traditional contexts. Similarly, the preamble of the EU Charter asserts that the Union is founded on ‘indivisible and universal values’, which notably include solidarity. The preamble of TFEU further reinforces this, expressing the Member States’ intent to confirm the solidarity binding Europe and its overseas territories and to promote their prosperity in alignment with the principles of the Charter of the United Nations. These provisions embody a concept of solidarity based on values, focusing not merely on accepting sacrifices for the common good, but rather on supporting others to address their needs and vulnerabilities. While it is true that the normative force of these provisions is limited, this does not negate their normative relevance altogether. Their significance extends beyond merely guiding legislators; they also exert a normative influence by enabling interpretations of legislation that advance these objectives. Most notably, a recent annulment decision of the CJEU on energy solidarity demonstrates a value-based interpretation of the principle, which suggests that the principle of solidarity necessitates carefully balancing Member State interests with the Union's collective objectives. 60 This interpretation suggests that solidarity is not solely a mechanism for prioritizing common interests but also serves to address individual vulnerabilities. 61
Beyond its driving forces, solidarity as a legal principle is defined by two essential characteristics: it necessitates a degree of sacrifice from the contributor and is directed toward the support and benefit of others. Both characteristics are evident within the EU data governance framework's approach to data sharing. First, data sharing as envisaged under the DGA, whether voluntary or mandatory, involves some level of sacrifice for contributors. Data sharing does not deplete the data itself, as it is not a consumable commodity. However, data sharing and processing introduces inherent risks for the data subject or owner, particularly the possibility of unauthorized access or misuse. The safeguards introduced under the DGA to minimize the likelihood and impact of such breaches highlight the potential vulnerabilities that come with sharing data. 62
Second, data sharing is driven by the goal of supporting others, which is the second characteristic of solidaristic action. Defined as ‘general interest’ under the DGA, the objectives of data sharing can include ‘healthcare, combating climate change, improving mobility, facilitating the development, production and dissemination of official statistics, improving the provision of public services, public policy making or scientific research purposes in the general interest’. 63 We discuss the term later in more detail, 64 but suffice to say here that it is intentionally defined open-ended, and with a view to maximize the potential societal benefits of data use. Adopting a broader reading, one can argue that the term ‘general interest’ extends to the distribution of value from data among stakeholders, bolsters innovation and enhances competition, all of which benefit society, if not directly, then indirectly, in the longer term. 65 Although drawn broadly, it is important that solidarity conditions the utilization of data for the general interest of society, as it recognizes individuals’ essential role in achieving general interests so that individual sacrifice is driven towards a societal purpose instead of relating to a carte blanche purpose for which data can be reutilized. In this way, solidarity is reflected in the idea of making collective contributions for the societal good.
It is useful to underline that data altruism envisages a voluntary type of contribution, 66 though data sharing designed under EU data governance can be on a mandatory basis, where solidarity can be a relevant concept. A broad interpretation of solidarity, encompassing mandatory contributions such as social welfare systems and mandatory vaccinations, more accurately reflects the concept's normative nature as applied in both EU and international human rights law. 67 For clarity, solidarity does not substantiate all those data access obligations. Rather, access to data demands may as well result from other legitimate interests. For example, the Data Act aims to ensure that data generated by connected devices and services is accessible to users, both consumers and businesses. 68 The core principle that underpins data sharing in this context is to empower data holders with control over their data, which is grounded in the concept of privacy and personal data protection. This understanding of solidarity as sacrificing for the common good resonates with the data-sharing scheme under EU acquis communautaire, to the extent that it seeks to promote the sharing of both personal and commercial data for the broader goals for the benefit of society at large with a view to contributing to the collective well-being and support of broader societal goals.
Yet solidarity supports mandatory forms of data sharing when such demands stem from the pursuit of mitigating a societal vulnerability. Although this is not outlined in the DGA, data sharing also takes mandatory forms in limited situations of general interest. The Data Act, for instance, includes provisions for public sector bodies to access private sector data during public emergencies or to fulfil legal mandates to safeguard public interests. 69 One can argue that the underlying rationale of this commercial data sharing demand is solidarity with the broader public, who will benefit from using this data. Likewise, the GDPR allows for the use of personal data for the purposes of public interest. 70 This includes situations where data processing is critical for humanitarian purposes, such as ‘monitoring epidemics and their spread or in situations of humanitarian emergencies, in particular in situations of natural and man-made disasters’. 71 Thus, in normative terms, solidarity may support data sharing, whether voluntary or mandatory, provided that it serves societal interests.
Having analysed how solidarity relates to and underpins the envisaged data sharing, we will next examine how interpretations of data sharing can be influenced by adopting a solidarity-based approach. Given the limited space available, we will focus on three areas to explore the key implications of this perspective, although we acknowledge that the relevance of solidarity extends beyond these, potentially encompassing aspects, such as consent.
Solidarity-based reading of data sharing
Defining ‘general interest’
The hallmark of data sharing under data altruism is its orientation towards the ‘general interest’. This concept is deliberately framed in broad terms that extend beyond the limits established by the EU Charter. Within the framework of the EU Charter, the general interest ‘recognized by the Union’ provides a legitimate foundation for actions that might otherwise be perceived as a limitation of the fundamental rights protected therein. 72 For example, the general interest of the EU encompasses objectives pursued within the Common Foreign and Security Policy, as outlined in Article 21(2) of the TEU, including supporting democracy, the rule of law, human rights, the preservation of peace, the prevention of conflicts and strengthening of international security, and the sustainable development of developing countries with the primary aim of eradicating poverty. 73 The broad application of this concept was also highlighted in an early case where the transparency in the usage of European funds was recognized as a general interest. 74
In the context of the DGA, however, the concept of ‘general interest’ has a new dimension. It is not solely confined to the ‘general interest of the EU’; instead, it is to be defined by individual Member States. Under the DGA, determining what constitutes the general interest rests with the Member States, who are responsible for implementing the Regulation. 75 Data altruism organizations are required to specify the objectives of the general interest they aim to support when collecting data. 76 At this point, it is useful to recall the closely related concept of ‘public interest’, also defined by Member States. This notion is frequently invoked within the single market to justify derogations from the economic freedoms established in EU law. 77 While not explicitly defined in EU law, ‘public interest’ is exemplified in various legislations. 78 The definition of public interest as ‘the aggregate of citizen entitlements that the state is charged to safeguard’ captures the essence of this concept, which highlights how public interest is inherently connected to state policies and actions at various levels. 79 Although there is significant overlap within the context of the DGA, the concept of general interest is more expansive, covering situations even when not framed or pursued as public policy within a given Member State. For instance, data sharing requests for research purposes illustrate this broader interpretation.
Apart from the broader interpretation aligning with the primary objective of maximizing data use, textual support for this argument can be found in how the GDPR presumes scientific research-related data processing purposes to be compatible with the prior lawful ground (e.g. public interest) for which the data is collected and processed. 80 In this way, the GDPR recognizes data-sharing efforts for research purposes alongside data processing for public interest reasons. In fact, the DGA lists a larger spectrum of objectives as an example, including but also going beyond public interest grounds, such as ‘healthcare, combating climate change, improving mobility, facilitating the development, production and dissemination of official statistics, improving the provision of public services, public policy making or scientific research purposes’. 81 The Act reiterates these exemplary purposes also in its Recital, indicating that technological advancement is considered a general interest by suggesting that the Regulation is intended to foster the creation of large data pools via data altruism, which will support data analytics and machine learning throughout the Union. 82 What is worth underlining is that technological and digital advancement is part of what the DGA considers a general interest.
There is little question that the DGA aspires to frame ‘general interest’ as an inclusive and dynamic concept, reflective of the multifaceted and evolving priorities and policies within the Union's data governance and digital innovations, as explained above. 83 Yet ample room for interpretation persists regarding the scope of ‘general interest’ under the DGA, particularly concerning who may benefit from data use (whether defined by locality, temporality or commercial orientation). As mentioned, the definition of general interest is left to the individual Member States. Although this allows for accommodating the priorities of individual Member States, it may present challenges to the overarching objective of maximizing data sharing, particularly when regional or indirect benefits are at stake. In such instances, the principle of solidarity offers a valuable framework for navigating these inherent uncertainties.
A key axis of uncertainty surrounding ‘general interest’ relates to its locality – whether it must benefit the Union at large or if it can encompass more regionally specific or demographically targeted initiatives. A conservative position might restrict the concept to collective goals rooted in the objectives of the EU society in general, while a broader interpretation could include data-sharing practices that address the needs of individual Member States or distinct segments of their populations, provided these practices align with overarching societal objectives. Initiatives aimed at addressing regional and localized challenges, particularly when guided by the principle of solidarity, can advance an inclusive vision of general interest, even if their immediate benefits appear geographically limited. 84
Another critical dimension lies in the timeline of the benefits derived from data use. While ‘interest’ may conventionally imply direct and immediate outcomes, a solidarity-oriented perspective supports an understanding that encompasses delayed, indirect or intangible benefits that may not be readily quantifiable. General interest, grounded in the principle of solidarity, arguably accommodates such long-term and transformative contributions. This inclusive understanding not only reaffirms the Union's commitment to fostering collective benefits of data use in the short term but, at the same time, embodies the principle of intergenerational solidarity, 85 wherein present efforts and sacrifices done in data sharing are directed towards securing societal ‘potential’ benefits for future generations. Scientific research, though it may not seek to address a pressing societal issue, expands the collective pool of knowledge, which is a vital foundation for future innovations that ultimately advance shared societal goals.
Another critical dimension in defining general interest lies in determining whether it should encompass purely commercially driven research. Privately funded initiatives, such as the pharmaceutical breakthroughs achieved during the COVID-19 pandemic, have undeniably provided societal benefits. As mentioned earlier, in its exemplification of general interest, the DGA emphasizes on the creation of extensive data pools to enhance data analytics and machine learning across the Union. 86 This does not necessarily have to be driven by public sector service enhancement and is, in fact, highly likely to be pursued through privately funded research. The key question, then, is whether an advancement driven primarily by commercial motivations can be considered to serve the general interest. Although public benefit is often a secondary objective of private initiatives, when viewed through the lens of solidarity, this secondary nature can be justified. Digital advancements, it can be argued, strengthen the technological autonomy of the Union by reducing its strategic reliance on external providers, thereby enhancing the EU's resilience and competitiveness. Economic benefits, similarly, can be interpreted as aligning with the concept of general interest, akin to the broader understanding of ‘legitimate interest’ under the GDPR. Support for a broader reading can also be found in the implementation of the GDPR, which, along with ‘public interest’, allows for ‘legitimate interest’ as a legal basis for the use of personal data. 87 When asked whether purely commercial interest can be considered a ‘legitimate interest’, the CJEU, unlike national courts, opted for a broader understanding of the concept to encompass commercial objectives. 88 While the relationship between ‘public interest’ and ‘legitimate interest’ under the GDPR, and the concept of ‘general interest’ as articulated in the DGA, merits deeper exploration, the Court's approach offers valuable insights into the intersection of private sector involvement and the broader notion of general interest. A particular issue here is that economic interests, despite being recognized as part of a legitimate interest for which data can be processed, do not give unlimited discretion to the private sector to usurp collected data. Where economic interests override the interests and freedoms of individuals, legitimate interest is no longer available as a lawful ground for data processing. 89 To ensure coherency across the EU data protection acquis and the protection of fundamental rights, data sharing actions rested on the DGA needs to consider this balancing act. As explored below, a solidarity-oriented perspective to this balancing inquiry can provide space for exploring ways to pursue mutual assistance in protecting people in vulnerable positions in a community.
Assessing proportionate action
The increasing demands for data sharing, both on commercial and public interest grounds, are likely to create conflicts between the rights of data subjects and holders or owners and those of data users. While the legislative framework for data sharing seeks to promote data usage with the protection of individual rights, there is an inherent difficulty in aligning these goals, which may come into conflict. Conflicts may also arise between competing notions of general interest, particularly as the concept is defined independently by individual Member States and often encompasses economic considerations, as discussed above. That raises a question of profound importance: when data sharing conflicts with other legitimate interests, which one should prevail?
There is no clear hierarchy between these competing interests; the outcome depends on a balancing exercise. Overriding reasons can be justified when a fundamental right conflicts with a competing interest, provided they safeguard either other fundamental rights outlined in the EU Charter or equally significant ‘general interests’ recognized by the Union. 90 When the conflict is between the objective of general interest that the data sharing rests and the juxtaposing right to data protection, 91 there are a number of considerations that potentially decide which one prevails in strictu sense balancing exercise. 92 Solidarity, we contend, should be one of them, particularly in cases involving health protection, environmental issues and social welfare, where it emerges as a key factor in achieving a sound methodology that can strategically factor in both the needs and vulnerabilities of society on the one hand and those of the individual on the other.
Solidarity, as a factor in balancing, has not been used in a case concerning fundamental rights in the EU jurisprudence. However, case law from the European Court of Human Rights (ECtHR) can shed light on the potential role of solidarity in achieving a balance between individual rights under the European Convention on Human Rights (ECHR) and the collective interest of the society, as several rulings have highlighted how solidarity influences the resolution of conflicts between these rights. 93 For instance, in Vavřička and Others v. the Czech Republic, the ECtHR examined whether the mandatory nature of preschool vaccines infringed upon applicants’ rights, including the right to privacy, as protected under Article 8 of the ECHR. 94 The Court observed that the obligation to vaccinate is founded on the principle of social solidarity, aimed at safeguarding the health of all society members, especially the most vulnerable to certain diseases, noting that the wider population is expected to accept a minimal risk through vaccination for this purpose. 95 In its proportionality assessment, the Court considered the implications of mandatory vaccination from multiple angles by evaluating benefits for vulnerable populations like unvaccinated children, consequences for non-compliance, including fines and preschool denial, the legality of exemptions for medical or conscientious reasons, compensation mechanisms for vaccination-related injuries, and recognized that medically exempt children's preschool attendance hinges on high vaccination rates among their peers. 96 The Court concluded that ‘it cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure, as a matter of legal duty and in the name of social solidarity, for the sake of the small number of vulnerable children who are unable to benefit from vaccination’. 97 Thus social solidarity weighed in to lead the Court to conclude that the mandatory vaccination scheme was not disproportionate.
The ECtHR has also considered solidarity in its balancing exercise in another case, Pasquinelli and Others v. San Marino, in balancing competing individual interests and the general interest of the public at large. 98 The case involved a group of health and social workers who refused COVID-19 vaccination and consequently faced employment-related measures. The applicants contested the measures, which laid down specific provisions for the unvaccinated public sector personnel, on the grounds of equality and non-discrimination, arguing that no conclusive evidence showed that vaccinated individuals could not spread the virus. 99 They also viewed the measures as an overreach of governmental power, infringing on personal rights like self-determination, right to work and health. 100 The Constitutional Court of San Marino upheld the measures, ruling them justified given the extraordinary context of a global pandemic. The ECtHR highlighted that the measures did not mandate vaccination but imposed different treatments based on vaccination status, which was appropriate given the significant public health risks. Importantly, the ECtHR framed its decision considering the concept of solidarity, emphasizing that individual freedoms sometimes yield to collective health needs, especially in crucial sectors like public health. For the Court, the principle of the collective protection of health justifies temporary sacrifices by unvaccinated individuals to protect the broader community. 101 The Court asserted that the measures struck a fair balance between the right to work and public health imperatives, ultimately affirming their legality and the proportionality of the government's pandemic response. ‘The more primordial interest of public health prevailed over a temporary restriction of the right to work of single individuals who refused to get vaccinated. Indeed, every individual freedom had its limits in the duty of solidarity towards the community they lived in. This duty of solidarity was all the more relevant in the public health sector, to which the impugned measures had been limited.’ 102 Solidarity weighed in as a factor that the Court considered against the implications of the restrictions on the applicants, which the Court considered limited.
Similarly, in the admissibility decision of De Kok v. the Netherlands, the ECtHR emphasized the role of solidarity and ‘burden-sharing’ in ensuring affordable health care. 103 The applicant claimed that the legal obligation to buy healthcare violated his ECHR rights (i.e. right to privacy, freedom of thought, conscience and religion and property). 104 The ECtHR observed that the compulsory basic healthcare scheme addresses ‘the pressing social need to ensure affordable and accessible healthcare for the population’. 105 Imposing a legal duty to have basic health insurance was a burden-sharing to ensure that everyone would have access to basic healthcare, indicating a ‘social or collective solidarity’. 106 This responsibility-sharing was not onerous for the applicant to claim an ECHR right violation because the state balanced the community’s interests with the individual's in protecting the ECHR rights. 107
Although these cases do not directly address data protection, they remain highly pertinent and important in at least two distinct ways. Firstly, they demonstrate that solidarity can be a legitimate consideration in legal deliberations, where the priority has traditionally been protecting individual rights. Secondly, and more crucially for this analysis, the discussed cases reveal that solidarity can be a significant factor in shaping the outcome of the balancing process. A data-sharing framework founded on the principle of solidarity might suggest that individuals could be expected to permit the use of their personal data for societal benefits, especially when it supports vulnerable populations, without imposing a disproportionate burden on the data providers. This principle could provide a robust justification for data-sharing measures, particularly in urgent public health and climate change situations. For example, during a pandemic, sharing health data could enhance the tracking and containment of the virus and accelerate medical research, leading to the development of effective treatments that significantly benefit public health.
To clarify, the principle of solidarity should neither universally prioritize communal interests over individual rights nor be indiscriminately applied in every instance of data-sharing conflicts. While often employed to address functional necessities within the EU, solidarity also embodies a value-driven dimension, 108 particularly relevant when balancing collective and individual interests or resolving competing general interests. 109 Applied selectively, solidarity ensures the support of vulnerable beneficiaries rather than merely advancing broad public benefits associated with data sharing. For example, technological advancements and private initiatives by tech companies – often driven by profit motives and high demand for data – can yield long-term societal benefits, such as enhancing digital infrastructure, reducing strategic dependencies or advancing scientific research. However, these developments can also carry risks, such as exacerbating inequalities or marginalizing vulnerable communities.
In such contexts, solidarity offers essential guidance by linking public interest considerations to societal vulnerabilities. The added value of a solidarity-based assessment lies in two key aspects. First, this perspective stands in contrast to objectives driven purely by functional or economic imperatives, which often overlook direct vulnerabilities, particularly in the area of technological innovation. By prioritizing the needs of the most marginalized and disadvantaged, solidarity transcends a simplistic invocation of the common interest and fosters a more balanced application of data sharing for the general interest. Second, unlike the narrower focus of ‘human rights protection’, which primarily emphasizes safeguarding individual rights, solidarity broadens the scope of protection to address societal vulnerabilities on a larger scale. This perspective strategically allows solidarity to encompass situations and groups that may fall outside the purview of traditional human rights frameworks but nonetheless face significant risks of harm or marginalization.
Harm mitigation
Despite concerted efforts to prevent data infringements, the use of data may still lead to detrimental consequences for the data subject or owner. Although such harm is often associated with the commercial exploitation of data, 110 both commercial and public uses can potentially cause significant damage. 111 The DGA, in fact, acknowledges this risk and accordingly entrusts the Member States with the obligation to establish national policies relating to the organizational and technical arrangements for data altruism. 112 Data shared under this scheme is to be collected and managed by trusted ‘data altruism organizations’ that act as repositories for data, voluntarily shared for altruistic purposes on a non-profit basis. 113 These organizations bear specific responsibilities towards data subjects and data holders. Data altruism organizations must inform data owners about the general interest objectives for which the data is processed, ensure the data is not used for unauthorized purposes, and maintain a high level of data security. 114 Furthermore, these organizations are obliged to notify data holders of any unauthorized transfer, access or use of the non-personal data they have shared. 115 The DGA also requires Member States to impose penalties designed to deter such infringements. 116
Nevertheless, the DGA falls short of mandating that Member States implement measures aimed at mitigating the harm resulting from violations of the regulation, such as unauthorized data use arising from misleading or insufficient information provided prior to obtaining consent. The GDPR establishes a compensation scheme for individuals against unlawful data processing leading to material and non-material damages. 117 Although this framework offers a supplementary pathway for mitigating harm, its efficacy remains limited. The broader ambit of the DGA's data-sharing provisions, in contrast to the more narrowly defined protections of the GDPR, leaves a distinct gap in addressing harms that may emerge from the expansive nature of data sharing envisaged under DGA. The DGA similarly leaves unresolved the complex question of harm arising even when data sharing occurs on a legitimate legal basis. Such harm may manifest despite lawful sharing practices, as in cases where consent is granted under the data altruism scheme. 118 While the DGA provides that data subjects and owners participating in such a scheme may be compensated for costs incurred when making their personal data available for objectives of general interest, there remain instances where the responsibility placed upon the individual may become heavy.
Solidarity calls for a comprehensive framework to address and remedy harms arising from data sharing. Such harm may stem not only from regulatory infringements but also from the lawful use of data, including data altruism, if it results in detriment to the contributor. When data is utilized for public interest purposes, such as scientific research, the principle of solidarity compels and reinforces the importance of providing effective remedies for any damages incurred.
An example of the flip side of the coin – that is, solidarity towards the individual or group – being effectively implemented can be found in constitutional jurisprudence. A notable instance is the mandatory vaccination scheme, which significantly stirs debate over its constitutional validity, particularly the imposition of such obligations to protect public health under the protection of constitutional freedoms. When the constitutionality of mandatory childhood vaccinations was challenged, the Constitutional Court of Slovenia affirmed the state's mandate to enforce vaccinations to ensure public health and collective immunity against infectious diseases. 119 Nonetheless, the Court declared the legislative act unconstitutional for not clearly defining the procedures and rights related to medical exemptions from mandatory vaccinations. The Court emphasized that the principle of solidarity, which supports the state's vaccination mandates enacted for public welfare, also necessitates compensation for individuals adversely affected by these measures. 120 While the principle of solidarity undeniably reinforces the legitimacy of data-sharing initiatives aimed at advancing societal welfare, it simultaneously demands, with equal vigour, a recalibration of the regulatory landscape to embed mechanisms that anticipate, mitigate and redress harms – whether stemming from unlawful exploitation or the unintended consequences of lawful altruistic practices – ensuring that the weight of collective benefit does not disproportionately burden the individual or, paradoxically, undermine societal welfare itself.
Concluding remarks
Despite its profound capacity to influence an intricate and evolving legal framework wherein data sharing assumes a central role, it is notable, if not enigmatic, that the principle of solidarity remains conspicuously absent from the legislative discourse surrounding data sharing. While it is true that not all data sharing is explicitly motivated by solidarity, the rationale for leveraging data in the service of societal interests – whether through advancements in health innovation, environmental sustainability or technological progress – is both compelling and increasingly urgent. This article contends that the principle of solidarity not only offers a conceptual anchor for navigating the ambiguities inherent in the notion of ‘general interest’ but also provides a normative lens through which to reconcile competing individual and general interests.
By promoting a comprehensive understanding that transcends immediate or localized gains, solidarity can ensure that the societal advantages of data sharing are fully realized. It can serve as a guiding principle in reconciling data used for general interest with competing legitimate interests. While solidarity often prioritizes collective benefits over individual rights – particularly in circumstances where societal needs are urgent and potential benefits are significant – it is not inherently adversarial to individual interests. Rather, it seeks to balance these considerations by foregrounding societal vulnerabilities and advocating for a fair distribution of benefits and burdens. In instances of conflict, solidarity necessitates a nuanced assessment that weighs societal advantages against potential harms, which emphasizes mitigation strategies where risks materialize. Thus, embedding solidarity into the EU's data governance framework, particularly in the context of data sharing, can provide a much-needed value-driven approach to resolving tensions between data protection and the general interest.
In this article, we examined from a legal perspective how solidarity influences and informs data governance in general and data sharing in particular. An area we have not explored but that merits attention is how data sharing might, in turn, shape and influence the development of solidarity as a legal concept. Data governance provides a framework where relationships can flourish, not only between Member States driven by legal obligations but also among individuals. Altruistic data sharing goes beyond merely demonstrating data owners’ willingness to support fellow EU citizens; it also embodies the foundational trust in these relationships. A value-based perspective, which underpins altruistic sharing, shifts the focus from sacrificing short-term interests for communal benefits, and broadens the scope of solidarity beyond the traditional inter-state concept of solidarity to include interpersonal and potentially intergenerational relationships, which is of particular importance in the context of protection of climate change. Given the modest effectiveness of judicial initiatives in promoting social solidarity and the resistance to fulfilling obligations under EU responsibility-sharing schemes, this innovative method could offer an ideal environment to strengthen and expand the social foundations of solidarity. Such a paradigm shift could foster deeper, value-driven solidarity among individuals, aligning with the EU's vision of becoming a community rooted in shared values.
Footnotes
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors received no financial support for the research, authorship, and/or publication of this article.
