Articles of the European Health Data Space (EHDS), Preamble 61 to 76

Preamble 61 to 76, Articles of the European Health Data Space (EHDS), (Proposal_3.5.2022)

(61) Cooperation and work is ongoing between different professional organisations, the Commission and other institutions to set up minimum data fields and other characteristics of different datasets (registries for instance). This work is more advanced in areas such as cancer, rare diseases, and statistics and shall be taken into account when defining new standards. However, many datasets are not harmonised, raising comparability issues and making cross-border research difficult. Therefore, more detailed rules should be set out in implementing acts to ensure a harmonised provision, coding and registration of electronic health data. Member States should work towards delivering sustainable economic and social benefits of European electronic health systems and services and interoperable applications, with a view to achieving a high level of trust and security, enhancing continuity of healthcare and ensuring access to safe and high-quality healthcare.

(62) The Commission should support Member States in building capacity and effectiveness in the area of digital health systems for primary and secondary use of electronic health data. Member States should be supported to strengthen their capacity. Activities at Union level, such as benchmarking and exchange of best practices are relevant measures in this respect.

(63) The use of funds should also contribute to attaining the objectives of the EHDS. Public procurers, national competent authorities in the Member States, including digital health authorities and health data access bodies, as well as the Commission should make references to applicable technical specifications, standards and profiles on interoperability, security and data quality, as well as other requirements developed under this Regulation when defining the conditions for public procurement, calls for proposals and allocation of Union funds, including structural and cohesion funds.

(64) Certain categories of electronic health data can remain particularly sensitive even when they are in anonymised format and thus non-personal, as already specifically foreseen in the Data Governance Act. Even in situations of the use of state of the art anonymization techniques, there remains a residual risk that the capacity to re-identify could be or become available, beyond the means reasonably likely to be used. Such residual risk is present in relation to rare diseases (a life-threatening or chronically debilitating condition affecting not more than five in 10 thousand persons in the Union), where the limited numbers of case reduce the possibility to fully aggregate the published data in order to preserve the privacy of natural persons while also maintaining an appropriate level of granularity in order to remain meaningful.

It can affect different types of health data depending on the level of granularity and description of the characteristics of data subjects, the number of people affected or and for instance in cases of data included in electronic health records, disease registries, biobanks, person generated data etc. where the identification characteristics are broader and where, in combination with other information (e.g. in very small geographical areas) or through the technological evolution of methods which had not been available at the moment of anonymisation, can lead to the re-identification of the data subjects using means that are beyond those reasonably likely to be used. The realisation of such risk of re-identification of natural persons would present a major concern and is likely to put the acceptance of the policy and rules on secondary use provided for in this Regulation at risk. Furthermore, aggregation techniques are less tested for non-personal data containing for example trade secrets, as in the reporting on clinical trials, and enforcement of breaches of trade secrets outside the Union is more difficult in the absence of a sufficient international protection standard. Therefore, for these types of health data, there remains a risk for re-identification after the anonymisation or aggregation, which could not be reasonably mitigated initially.

This falls within the criteria indicated in Article 5(13) of Regulation […] [Data Governance Act COM/2020/767 final]. These types of health data would thus fall within the empowerment set out in Article 5(13) of Regulation […] [Data Governance Act COM/2020/767 final] for transfer to third countries. The protective measures, proportional to the risk of re-identification, would need to take into account the specificities of different data categories or of different anonymization or aggregation techniques and will be detailed in the context of the Delegated Act under the empowerment set out in Article 5(13) of Regulation […] [Data Governance Act COM/2020/767 final].

(65) In order to promote the consistent application of this Regulation, a European Health Data Space Board (EHDS Board) should be set up. The Commission should participate in its activities and chair it. It should contribute to the consistent application of this Regulation throughout the Union, including by helping Member State to coordinate the use of electronic health data for healthcare, certification, but also concerning the secondary use of electronic health data. Given that, at national level, digital health authorities dealing with the primary use of electronic health data may be different to the health data access bodies dealing with the secondary use of electronic health data, the functions are different and there is a need for distinct cooperation in each of these areas, the EHDS Board should be able to set up subgroups dealing with these two functions, as well as other subgroups, as needed.

For an efficient working method, the digital health authorities and health data access bodies should create networks and links at national level with different other bodies and authorities, but also at Union level. Such bodies could comprise data protection authorities, cybersecurity, eID and standardisation bodies, as well as bodies and expert groups under Regulations […], […], […] and […] [Data Governance Act, Data Act, AI Act and Cybersecurity Act].

(66) In order to manage the cross-border infrastructures for primary and secondary use of electronic health data, it is necessary to create the Joint controllership group for authorised participants (e.g. to ensure the compliance with data protection rules and this Regulation for the processing operations performed in such infrastructures).

(67) Since the objectives of this Regulation: to empower natural persons through increased control of their personal health data and support their free movement by ensuring that health data follows them; to foster a genuine single market for digital health services and products; to ensure a consistent and efficient framework for the reuse of natural persons’ health data for research, innovation, policy-making and regulatory activities cannot be sufficiently achieved by the Member States, through coordination measures alone, as shown by the evaluation of the digital aspects of the Directive 2011/24/EU but can rather, by reason of harmonising measures for rights of natural persons in relation to their electronic health data, interoperability of electronic health data and a common framework and safeguards for the primary and secondary use of electronic health data, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve those objectives.

(68) In order to ensure that EHDS fulfils its objectives, the power to adopt acts in accordance with Article 290 Treaty on the Functioning of the European Union should be delegated to the Commission in respect of different provisions of primary and secondary use of electronic health data. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Inter-institutional Agreement of 13 April 2016 on Better Law-Making 52 . In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

(69) In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council 53.

(70) Member States should take all necessary measures to ensure that the provisions of this Regulation are implemented, including by laying down effective, proportionate and dissuasive penalties for their infringement. For certain specific infringements, Member States should take into account the margins and criteria set out in this Regulation.

(71) In order to assess whether this Regulation reaches its objectives effectively and efficiently, is coherent and still relevant and provides added value at Union level the Commission should carry out an evaluation of this Regulation. The Commission should carry out a partial evaluation of this Regulation 5 years after its entry into force, on the self-certification of EHR systems, and an overall evaluation 7 years after the entry into force of this Regulation. The Commission should submit reports on its main findings following each evaluation to the European Parliament and to the Council, the European Economic and Social Committee and the Committee of the Regions.

(72) For a successful cross-border implementation of EHDS, the European Interoperability Framework 54 to ensure legal, organisational, semantic and technical interoperability should be considered as common reference.

(73) The evaluation of the digital aspects of Directive 2011/24/EU shows limited effectiveness of eHealth Network, but also strong potential for EU work in this area, as shown by the work during pandemic. Therefore, the article 14 of the Directive will be repealed and replaced by the current Regulation and the Directive will be amended accordingly.

(74) The European Data Protection Supervisor and the European Data Protection Board were consulted in accordance with Article 42 of Regulation (EU) 2018/1725 and delivered an opinion on […].

(75) This Regulation should not affect the application of the rules of competition, and in particular Articles 101 and 102 of the Treaty. The measures provided for in this Regulation should not be used to restrict competition in a manner contrary to the Treaty.

(76) Given the need for technical preparation, this Regulation should apply from [12 months after entry into force],