New developments on FIDA: Questionnaire to the EU Member States

The European Commission had published its proposal for the Financial Data Access Regulation (“FIDA”) back in June 2023. Recently, however, negotiations at European level appeared to have stalled. The Council of the European Union now circulated a questionnaire to the EU Member States to ensure that the EU Member States adopt a common position for further negotiations on FIDA. 

The aim of FIDA is to create a new, harmonised framework regulating how consumers can access their financial data and how this data can be made available to third-party providers. The core objectives are to strengthen consumer protection and to foster innovative, data-driven business models in the financial markets (see our detailed FIDA overview here).

Ongoing discussions

Although FIDA’s objectives are generally accepted by all stakeholders, discussions are increasingly focusing on certain key issues on which no agreement has yet been reached. One of those key issues is the regulation’s scope. Market participants and EU member states had raised concerns regarding market adjustment costs related to the scope of customer data included by FIDA. Therefore, discussions focussed on the data categories that should fall under mandatory data sharing obligations under FIDA. In this context, also the step-by-step implementation of FIDA for one data category after the other was challenged.

On another note, there were concerns that gatekeepers (digital platforms that hold a dominant market position due to control of access to key digital services such as search engines, social networks or intermediary services) could hinder fair competition in the EU. Discussions therefore also focussed on excluding these gatekeepers from FIDA in order to deny access to financial data.

The Council of the European Union now sent a questionnaire on these key issues to the EU Member States (“Questionnaire”). The intension is to ensure that the EU Member States adopt a common position for further negotiations on FIDA in order to finally adopt FIDA.  

Questionnaire

The Questionnaire now intends to find a common approach for FIDA among the EU Member States regarding the discussed key issues:

Political Outlook

The Council of the European Union wishes to confirm that EU Member States are still willing to work on the FIDA regulation and to resume negotiations.

Scope of FIDA

The EU Member States need to answer the question whether the use of a “reversed-demand approach” would be a realistic basis for further negotiations. The FIDA draft currently provides for an automated, fixed step-by-step implementation for the data categories. The demand for the implementation of these data categories is only evaluated retrospectively, arguing that many customers cannot express their actual demand due to market barriers and lock-in effects that limit data access.

Under the „reversed-demand approach“, all data categories are in scope of FIDA, unless a financial data sharing scheme (“FDSS”) demonstrates that there is actually no demand for a certain category of customer data. FDSS is given the option, to exclude specific data from their data-sharing obligation by performing a no-demand test, i.e. the FDSS needs to prove that the following conditions are met: (1) no data user has requested that data category to be included in the scope of that FDSS; (2) no data user has been accessing that data category through a customer interface; and (3) the corresponding data category is not included in any other FDSS in the EU. The FDSS has to assess the accuracy of a no-demand-test on an annual basis.

Step-by-step approach

In case an EU Member State rejects the “reversed-demand approach”, the Council of the European Union proposes a modified step-by-step approach. Under this approach, the data categories remain generally included into FIDA as already provided by the current FIDA draft. However, the automatism to move to the next step of implementation would be removed. Rather, the implementation experience regarding the former step is evaluated and the next step of implementation would only commence upon approval by a European Commission’s implementing act.

Gatekeepers

With the last question, the Council of the European Union intends to assess whether the EU Member States prefer a partial or full exclusion of gatekeepers from FIDA. Under the partial exclusion, gatekeepers (currently Alphabet, Amazon, Apple, Booking, ByteDance, Meta and Microsoft) would be excluded from becoming a FIDA-licenced financial information service provider and safeguards would be imposed against entities that are owned or controlled by gatekeepers. The full exclusion option means, that gatekeepers and entities owned or controlled by gatekeepers are excluded from FIDA.

Notably, stakeholders seem to largely agree that the market dominance of gatekeepers needs to be addressed. However, although the majority of stakeholders appear to reject a full exclusion of gatekeepers from FIDA, there is no consensus on what specific safeguards should be implemented under a partial-exclusion-approach.   

Outlook

The questionnaire demonstrates the desire at European level to finally reach a common position following the extensive discussions and to bring the legislative process to a final conclusion: The Questionnaire requires speedy responses from the EU Member States, as the deadline is 10 April 2026.