Amendment 622· Data Act Article 5(11)
~Alternative
Text of the amendment
As tabled
Wordingagainst the Commission’s
11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate with sufficient evidence that the product data and related service data constiute a trade secret within the meaning of Article 2(1) of Directive 2016/943, that such trade secrets cannot be eliminated or sufficiently mitigated through design measures pursutant to Aritcle 3(1), and, despite the technical and organisational measures taken by the third partyuser pursuant to paragraph 96 of this Article, it is highly likely to suffer serious and demonstrable economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third partyuser poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent user or trade secret protection compared to that under Union law. For the purposes of this Regulation, that'serious economic damage' does not include normal competitive effects arising from lawful access under the Data Act.
The data holder mayshall refuse on a case-by-case basis a request for access toidentify the specific data inthat questionconstitutes a trade secret and shall not classify entire datasets as trade secrets. ThatAny such demonstration shall be duly substantiated on the basis of objective elements, suchverifiable asand specific evidence, taking into account, in particular, the enforceability of trade secretssecret protection in third countries, the nature and level of confidentiality of the data requestedconcerned, the design measures applied pursuant to Article 3(1), and the uniqueness and novelty of the connected product. ItSuch demonstration shall be provided in writing to the third partyuser without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.;Where the data holder refuses to share specific data on the basis of trade secret protection, it shall notify the competent authority designated pursuant to Article 37 without undue delay and no later than five working days after communicating the refusal to the user. The competent authority shall review the substantiation provided and issue a binding decision within sixty calendar days of receipt of the notification.
A refusal shall be permitted only on a case-by-case basis and shall be duly reasoned, proportionate and limited to the specific data strictly necessary to protect the trade secret. It shall not prejudice the rights of users under this Regulation. Any claim relating to third-country entities shall be supported by concrete evidence demonstrating a specific risk of unlawful access, use or disclosure.
Access may be refused only where the data holder demonstrates, on the basis of objective and verifiable evidence, that disclosure would create a serious and specific risk of unlawful acquisition, use or disclosure of the trade secret that cannot be adequately mitigated through confidentiality measures, technical safeguards or contractual arrangements.
Struck CommissionHighlighted amendment
Data Act Article 5 with this amendment
Amendment 622 applied to the Commission proposal, no other amendment
Unchanged: (1), (2), (3), (4), (5), (6) and 4 more
Upon request by a user, or by a party acting on behalf of a user, the data holder shall make available readily available data, as well as the relevant metadata necessary to interpret and use those data, to a third party without undue delay, of the same quality as is available to the data holder, easily, securely, free of charge to the user, in a comprehensive, structured, commonly used and machine-readable format and, where relevant and technically feasible, continuously and in real-time. The data shall be made available by the data holder to the third party in accordance with Articles 8 and 9.
Paragraph 1 shall not apply to readily available data in the context of the testing of new connected products, substances or processes that are not yet placed on the market unless their use by a third party is contractually permitted.
Any undertaking designated as a gatekeeper, pursuant to Article 3 of Regulation (EU) 2022/1925, shall not be an eligible third party under this Article and therefore shall not:
solicit or commercially incentivise a user in any manner, including by providing monetary or any other compensation, to make data available to one of its services that the user has obtained pursuant to a request under Article 4(1);
solicit or commercially incentivise a user to request the data holder to make data available to one of its services pursuant to paragraph 1 of this Article;
receive data from a user that the user has obtained pursuant to a request under Article 4(1).
For the purpose of verifying whether a natural or legal person qualifies as a user or as a third party for the purposes of paragraph 1, the user or the third party shall not be required to provide any information beyond what is necessary. Data holders shall not keep any information on the third party’s access to the data requested beyond what is necessary for the sound execution of the third party’s access request and for the security and maintenance of the data infrastructure.
The third party shall not use coercive means or abuse gaps in the technical infrastructure of a data holder which is designed to protect the data in order to obtain access to data.
A data holder shall not use any readily available data to derive insights about the economic situation, assets and production methods of, or the use by, the third party in any other manner that could undermine the commercial position of the third party on the markets in which the third party is active, unless the third party has given permission to such use and has the technical possibility to easily withdraw that permission at any time.
Where the user is not the data subject whose personal data is requested, any personal data generated by the use of a connected product or related service shall be made available by the data holder to the third party only where there is a valid legal basis for processing under Article 6 of Regulation (EU) 2016/679 and, where relevant, the conditions of Article 9 of that Regulation and of Article 5(3) of Directive 2002/58/EC are fulfilled.
Any failure on the part of the data holder and the third party to agree on arrangements for transmitting the data shall not hinder, prevent or interfere with the exercise of the rights of the data subject under Regulation (EU) 2016/679 and, in particular, with the right to data portability under Article 20 of that Regulation.
Trade secrets shall be preserved and shall be disclosed to third parties only to the extent that such disclosure is strictly necessary to fulfil the purpose agreed between the user and the third party. The data holder or, where they are not the same person, the trade secret holder shall identify the data which are protected as trade secrets, including in the relevant metadata, and shall agree with the third party all proportionate technical and organisational measures necessary to preserve the confidentiality of the shared data, such as model contractual terms, confidentiality agreements, strict access protocols, technical standards and the application of codes of conduct.
Where there is no agreement on the necessary measures referred to in paragraph 9 of this Article or if the third party fails to implement the measures agreed pursuant to paragraph 9 of this Article or undermines the confidentiality of the trade secrets, the data holder may withhold or, as the case may be, suspend the sharing of data identified as trade secrets. The decision of the data holder shall be duly substantiated and provided in writing to the third party without undue delay. In such cases, the data holder shall notify the competent authority designated pursuant to Article 37 that it has withheld or suspended data sharing and identify which measures have not been agreed or implemented and, where relevant, which trade secrets have had their confidentiality undermined.
In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate with sufficient evidence that the product data and related service data constiute a trade secret within the meaning of Article 2(1) of Directive 2016/943, that such trade secrets cannot be eliminated or sufficiently mitigated through design measures pursutant to Aritcle 3(1), and, despite the technical and organisational measures taken by the third partyuser pursuant to paragraph 96 of this Article, it is highly likely to suffer serious and demonstrable economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third partyuser poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent user or trade secret protection compared to that under Union law. For the purposes of this Regulation, that'serious economic damage' does not include normal competitive effects arising from lawful access under the Data Act. The data holder mayshall refuse on a case-by-case basis a request for access toidentify the specific data inthat questionconstitutes a trade secret and shall not classify entire datasets as trade secrets. ThatAny such demonstration shall be duly substantiated on the basis of objective elements, suchverifiable asand specific evidence, taking into account, in particular, the enforceability of trade secretssecret protection in third countries, the nature and level of confidentiality of the data requestedconcerned, the design measures applied pursuant to Article 3(1), and the uniqueness and novelty of the connected product. ItSuch demonstration shall be provided in writing to the third partyuser without undue delay. Where the data holder refuses to share specific data pursuanton tothe thisbasis paragraphof trade secret protection, it shall notify the competent authority designated pursuant to Article 37 without undue delay and no later than five working days after communicating the refusal to the user. The competent authority shall review the substantiation provided and issue a binding decision within sixty calendar days of receipt of the notification. A refusal shall be permitted only on a case-by-case basis and shall be duly reasoned, proportionate and limited to the specific data strictly necessary to protect the trade secret. It shall not prejudice the rights of users under this Regulation. Any claim relating to third-country entities shall be supported by concrete evidence demonstrating a specific risk of unlawful access, use or disclosure. Access may be refused only where the data holder demonstrates, on the basis of objective and verifiable evidence, that disclosure would create a serious and specific risk of unlawful acquisition, use or disclosure of the trade secret that cannot be adequately mitigated through confidentiality measures, technical safeguards or contractual arrangements.
Unchanged: (12) and (13)
Without prejudice to the third party’s right to seek redress at any stage before a court or tribunal of a Member State, a third party wishing to challenge a data holder’s decision to refuse or to withhold or suspend data sharing pursuant to paragraphs 10 and 11 may:
lodge, in accordance with Article 37(5), point (b), a complaint with the competent authority, which shall, without undue delay, decide whether and under which conditions the data sharing is to start or resume; or
agree with the data holder to refer the matter to a dispute settlement body in accordance with Article 10(1).
The right referred to in paragraph 1 shall not adversely affect the rights of data subjects pursuant to the applicable Union and national law on the protection of personal data.
Struck removed Highlighted added Full text on the Data Act Article 5 page
Target
Wording of the targeted provisionlaw in force, Commission proposal, latest Council text
Law in forceData Act, Article 5(11)
In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that it is highly likely to suffer serious economic damage from the disclosure of trade secrets, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, in particular the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product, and shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.
Commission proposalCOM(2025) 837
11. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the third party pursuant to paragraph 9 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a high risk of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37.
Council text of 22 October 2026ST 14756/26
11.Where the data holder who is a trade secret holder is able to demonstrate that it is likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the third party poses a significant of unlawful acquisition, use, or disclosure to third country entities, or entities established in the Union under the direct or indirect control of such entities, which are subject to jurisdictions offering weaker or non-equivalent protection compared to that under Union law, in particular as regards trade secrets representing industrial manufacturing know-how for entities in the sectors referred to in Annex I and Annex II points 3, 5a, 5d and 5e of Directive (EU) 2022/2555), that data holder may refuse a request for access to the specific data in question. That demonstration shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries, the nature and level of confidentiality of the data requested, and the uniqueness and novelty of the connected product. It shall be provided in writing to the third party without undue delay. Data holders who refuse to share data pursuant to the first sub-paragraph shall notify all instances of refusal to the competent authority designated pursuant to Article 37 every 3 months. The Commission shall issue guidelines, in consultation with the European Data Innovation Board (EDIB), on the application of this paragraph, such as the assessment of serious economic damage, the critical economic sectors and the type of data in those critical economic sectors that typically may give rise to serious economic damage when unlawfully disclosed to third parties, and as regards risks for third country disclosure, on the enforceability of trade secrets protection in third countries, and how to assess the control of economic operators by third-country entities.
Cite this amendment
Amendment 622 (Elena Sancho Murillo and others), European Parliament, Committee on Industry, Research and Energy and Committee on Civil Liberties, Justice and Home Affairs, amendments 527–776 to the draft report on COM(2025) 837 (CJ72-AM-791071, PE791.071v01-00, 27 July 2026), pp. 71–73
Link, short form and official text
Amendment 622 (Elena Sancho Murillo and others), European Parliament, Committee on Industry, Research and Energy and Committee on Civil Liberties, Justice and Home Affairs, amendments 527–776 to the draft report on COM(2025) 837 (CJ72-AM-791071, PE791.071v01-00, 27 July 2026), pp. 71–73
ITRE–LIBE Amendment 622 (CJ72-AM-791071), p. 71