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Digital Omnibus tracker

Data Act · Regulation (EU) 2023/2854

Article 4

Compare the available Commission, Council and Parliament texts and amendments affecting this article.

Article total: 11 parts · 3 Council drafts · 47 Parliament amendments

Removed wording is struck through; added or replacement wording is highlighted.

Institutional text

European Commission proposal

All Commission’s changes to Data Act

The wording proposed by the Commission at the start of this legislative file.

Full article with Commission changes

Article with proposed changes

Official consolidated text dated 13 December 2023, with the Commission proposal change affecting this article applied.

Article 4

The rights and obligations of users and data holders with regard to access, use and making available product data and related service data

  1. 1.

    Where data cannot be directly accessed by the user from the connected product or related service, data holders shall make readily available data, as well as the relevant metadata necessary to interpret and use those data, accessible to the user without undue delay, of the same quality as is available to the data holder, easily, securely, free of charge, in a comprehensive, structured, commonly used and machine-readable format and, where relevant and technically feasible, continuously and in real-time. This shall be done on the basis of a simple request through electronic means where technically feasible.

  2. 2.

    Users and data holders may contractually restrict or prohibit accessing, using or further sharing data, if such processing could undermine security requirements of the connected product, as laid down by Union or national law, resulting in a serious adverse effect on the health, safety or security of natural persons. Sectoral authorities may provide users and data holders with technical expertise in that context. Where the data holder refuses to share data pursuant to this Article, it shall notify the competent authority designated pursuant to Article 37.

  3. 3.

    Without prejudice to the user’s right to seek redress at any stage before a court or tribunal of a Member State, the user may, in relation to any dispute with the data holder concerning the contractual restrictions or prohibitions referred to in paragraph 2:

    1. (a)

      lodge, in accordance with Article 37(5), point (b), a complaint with the competent authority; or

    2. (b)

      agree with the data holder to refer the matter to a dispute settlement body in accordance with Article 10(1).

  4. 4.

    Data holders shall not make the exercise of choices or rights under this Article by the user unduly difficult, including by offering choices to the user in a non-neutral manner or by subverting or impairing the autonomy, decision-making or choices of the user via the structure, design, function or manner of operation of a user digital interface or a part thereof.

  5. 5.

    For the purpose of verifying whether a natural or legal person qualifies as a user for the purposes of paragraph 1, a data holder shall not require that person to provide any information beyond what is necessary. Data holders shall not keep any information, in particular log data, on the user’s access to the data requested beyond what is necessary for the sound execution of the user’s access request and for the security and maintenance of the data infrastructure.

  6. 6.

    Trade secrets shall be preserved and shall be disclosed only where the data holder and the user take all necessary measures prior to the disclosure to preserve their confidentiality in particular regarding third parties. 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 user proportionate technical and organisational measures necessary to preserve the confidentiality of the shared data, in particular in relation to third parties, such as model contractual terms, confidentiality agreements, strict access protocols, technical standards and the application of codes of conduct.

  7. 7.

    Where there is no agreement on the necessary measures referred to in paragraph 6, or if the user fails to implement the measures agreed pursuant to paragraph 6 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 user 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.

  8. 8.

    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 user pursuant to paragraph 6 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 user 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, insuch particularas 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,. andIt shall be provided in writing to the user 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.

  9. 9.

    Without prejudice to a user’s right to seek redress at any stage before a court or tribunal of a Member State, a user wishing to challenge a data holder’s decision to refuse or to withhold or suspend data sharing pursuant to paragraphs 7 and 8 may:

    1. (a)

      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 data sharing is to start or resume; or

    2. (b)

      agree with the data holder to refer the matter to a dispute settlement body in accordance with Article 10(1).

  10. 10.

    The user shall not use the data obtained pursuant to a request referred to in paragraph 1 to develop a connected product that competes with the connected product from which the data originate, nor share the data with a third party with that intent and shall not use such data to derive insights about the economic situation, assets and production methods of the manufacturer or, where applicable the data holder.

  11. 11.

    The user 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.

  12. 12.

    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 user 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.

  13. 13.

    A data holder shall only use any readily available data that is non-personal data on the basis of a contract with the user. A data holder shall not use such data to derive insights about the economic situation, assets and production methods of, or the use by, the user in any other manner that could undermine the commercial position of that user on the markets in which the user is active.

  14. 14.

    Data holders shall not make available non-personal product data to third parties for commercial or non-commercial purposes other than the fulfilment of their contract with the user. Where relevant, data holders shall contractually bind third parties not to further share data received from them.

Commission source wording and instructions

Article 4(8)

Commission proposal

8. 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 user pursuant to paragraph 6 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 user 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 user 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.

Institutional text

Council Presidency texts

Successive Presidency compromise texts. Their inclusion does not imply agreement or adoption.

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Article 4(8)

June Presidency compromise · 10 June

Council wording reconstructed for this provision from the official operation

8. Where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 of this Article, it is likely to suffer serious economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the user 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 nonequivalent protection compared to that under Union law, that data holder may refuse a request for access to the specific data in question. That demonstration may be 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 user 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. 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, and the enforceability of trade secrets protection in third countries.

Competing proposals

European Parliament amendments

These are alternative tabled amendments. An amendment affecting several tracked parts appears once here, with each target identified.

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Political group at the amendment date where available; otherwise the current Parliament affiliation.

Alternative wording Amendment 26 JURI draft opinion · Brando Benifei (rapporteur)
8. InTrade exceptionalsecrets circumstances,shall whereonly be disclosed provided that all specific necessary measures are taken to preserve the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 of this Article, it is highly likely to suffer serious economic damage from the disclosureconfidentiality of trade secrets orin thatparticular thewith disclosure of trade secretsrespect to third parties. The data holder and the user posescan aagree highmeasures riskto preserve the confidentiality of unlawfulthe acquisitionshared data, use,in orparticular disclosurein relation to third countryparties. entitiesThe Commission shall issue guidance, or entities established in theconsultation Union underwith the directEuropean orData indirectInnovation controlBoard of such entities(EDIB), 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 basisapplication of objectivethis elementsparagraph, such as the assessment of serious economic damage, and 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 user 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.’;
Justification

This amendment restores the original balancing logic of the Data Act, under which trade secrets should primarily be protected through appropriate confidentiality safeguards rather than broad refusal rights. It aims to preserve access to data while ensuring proportionate protection of legitimate commercial interests and improving legal certainty through guidance at Union level.

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Remove proposed wording Amendment 38 IMCO draft opinion · Alex Agius Saliba (rapporteur)
8. 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 user pursuant to paragraph 6 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 user 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 user 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.;
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Additional proposed wording Amendment 39 IMCO draft opinion · Alex Agius Saliba (rapporteur)
8a.

The data holder shall not rely on this Article to refuse data access on the basis of generalised assumptions concerning a third country, ownership structure, technology provider, or category of recipient. The data holder shall not engage in any behaviour that undermines effective compliance with the data access obligations under this Regulation regardless of whether that behaviour is of a contractual, commercial or technical nature, or of any other nature, or consists in the use of behavioural techniques or interface design.

Justification

Additional safeguard for effective compliance inspired on art 13 para 4 of the Digital Markets Act.

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Additional proposed wording Amendment 40 IMCO draft opinion · Alex Agius Saliba (rapporteur)
8b.

Before refusing access under paragraph 8, the data holder shall assess whether the identified risk can be effectively addressed through proportionate technical, organisational, contractual, or secure-access measures, including access in a secure processing environment, partial access, aggregation, confidentiality commitments, or other safeguards that enable the user to exercise the rights provided for in this Regulation. Refusal shall be used only where such measures would be insufficient to address a duly substantiated and specific risk.

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Additional proposed wording Amendment 41 IMCO draft opinion · Alex Agius Saliba (rapporteur)
8c.

The review of the data holder’s refusal to provide data access by the competent authority designated pursuant to Article 37 referred to in paragraph 8 shall be available through an expedited procedure which shall not be later than a month in complex cases. The competent authority shall assess the necessity, proportionality, evidence and non-discriminatory nature of the refusal.

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Alternative wording Amendment 166 · Emil Radev JURI
8. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstratefinds that, despite the technicaldata andrequested organisationalmay measuresresult taken by the user pursuant to paragraph 6 of this Article, it is highly likely to suffer serious economic damage fromin the disclosure of trade secrets or that the disclosure of trade secrets to the user 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 lawparty, 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 user without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competentuser authorityrequesting designatedthe pursuantdata. toThe ArticleCommission 37shall issue guidance in consultation with the stakeholders, on the application of this paragraph.;
Justification

This amendment strengthens the protection of trade secrets by allowing data holders to refuse access where there is a risk of unlawful acquisition, use or disclosure of confidential business information. It helps safeguard innovation, competitiveness and sensitive commercial assets, while providing additional guidance for the consistent application of the provision.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 167 · Laurence Farreng JURI
8. 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 user pursuant to paragraph 6 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 user 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 shall first propose to the user specific technical and organisational measures to preserve the confidentiality of the trade secrets in question. The user and data holder shall engage in good faith negotiations to reach agreement on such measures within a reasonable timeframe. The data holder may only refuse on a case-by-case basis a request for access to the specific data in question if no mutually acceptable measures can be agreed. 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 user 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, specifying the measures proposed and the reasons why no agreement could be reached.;
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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 168 · David Cormand JURI
8. 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 user pursuant to paragraph 6 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 user poses a high risk of unlawful acquisition, use, or disclosure, notably 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 withhold or, as the case may be, suspend the sharing of data identified as trade secrets 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 user 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.;’ Decisions regarding refusal to grant access to the concerned data shall be subject to review. This review shall be carried out by an independent authority. The authority shall act transparently towards the requesting user or recipient. It shall also provide effective redress.
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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 169 · Mario Mantovani JURI
8. 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 user pursuant to paragraph 6 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 user 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 must prove that the refusal is necessary and proportionate and shall be duly substantiated on the basis of objective elements, such as the enforceability of trade secrets protection in third countries,and 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 user without undue delay and shall contain detailed, verifiable and evidence-based reasoning justifying the refusal. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competent authority designated pursuant to Article 37. The refusal shall be reviewed by the competent authority or another independent dispute settlement body pursuant to this Regulation.’;
Justification

The proposed extension of the trade secrets safeguard, which is intended to guard against the risk of trade secrets being disclosed to third countries, provides further grounds for refusal which run the risk of undermining the objectives of the Data Act by allowing original equipment manufacturers to systematically limit SMEs from accessing data. SMEs often lack the wherewithal to assess complex corporate structures or demonstrate that their requests are devoid of risk. The burden of proof should continue to be with the data holder; safeguards should be applied restrictively, and refusals should be duly substantiated and subject to independent review.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 170 · Tobiasz Bocheński, Kosma Złotowski JURI
8. 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 user pursuant to paragraph 6 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 user 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 or categorial 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 user 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.;
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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Additional proposed wording Amendment 171 · Emil Radev JURI

8a. Article 4, paragraph 13 is amended as follows

13.

A data holder is entitled to shall only use any readily available data that is non-personal data on the basis of a contract with the user. Such use shall be without prejudice to Regulation (EU) 2016/679 and shall comply with Union and national law on the protection of trade secrets and intellectual property rights. A data holder shall not use such data to derive insights about the economic situation, assets and production methods of, or the use by, the user in any other manner that could undermine the commercial position of that user on the markets in which the user is active.

Justification

This amendment clarifies that the use of non-personal data does not require additional user consent or contractual arrangements. It enhances legal certainty, reduces unnecessary administrative burdens and facilitates the effective use of non-personal data in line with the objectives of the Regulation.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 13

Alternative wording Amendment 225 · David Cormand on behalf of the Verts/ALE Group IMCO
2b. in Article 4, a new paragraph is introduced after paragraph 4: 4. Data holders shall not make the exercise of choices or rights under this Article by the user unduly difficult, including by offering choices to the user in a non-neutral manner or by subverting or impairing the autonomy, decision-making or choices of the user via the structure, design, function or manner of operation of a user digital interface or a part thereof. 4a. The user shall have the right to determine whether, and to what extent, product data or related service data generated on the user's local network is transmitted beyond that network to the manufacturer, the data holder, or any third party. The data holder shall provide the user with a readily accessible technical means to exercise or withdraw this determination at any time, free of charge, without this affecting the user's access rights under Article 3 or this Article. This paragraph shall not restrict processing of data strictly necessary for: (a) cybersecurity and the delivery of security updates; (b) compliance with a legal obligation to which the manufacturer or data holder is subject; or (c) a safety recall."
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Header printed in the source: Article 1 – paragraph 1 – point 2 b (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 4

Alternative wording Amendment 227 · David Cormand on behalf of the Verts/ALE Group IMCO
8. Trade secrets shall only be disclosed provided that all specific necessary measures are taken to preserve the confidentiality of trade secrets in particular with respect to third parties. The data holder and the user can agree measures to preserve the confidentiality of the shared data, in particular in relation to third parties. The Commission shall issue guidance, in consultation with the European Data Innovation Board (EDIB), on the application of this paragraph, such as the assessment of serious economic damage, and the enforceability of trade secrets protection in third countries. Trade secret shall not be used as a pretext to deny legitimate access to data subjects and regulatory bodies. Any refusal of access must constitute a measure of last resort. Before refusing access, the data controller must offer a viable and secure alternative. This alternative must guarantee legitimate data use while ensuring the non-disclosure of trade secrets. Such alternatives may include confidentiality agreements, restricted access protocols subject to regular audits, technical measures for data aggregation or anonymization, technical architectures and standards that preserve confidentiality. 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 user pursuant to paragraph 6 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 user poses a high risk of unlawful acquisition, use, or disclosure to notably 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 refusewithhold or, as the case may be, suspend the sharing of data identified as trade secrets 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 user 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.; Decisions regarding refusal shall be subject to review by an independent authority that will act transparently towards the requesting user or recipient and provide effective redress.
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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 228 · Virginie Joron IMCO
8. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrateestablish on reasonable grounds that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or of industrial, strategic or sensitive data whose disclosure would be likely to cause damage to economic security, privacy or law and order, or that the disclosure of those data or of trade secrets to the user 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, including because of the likely onward transmission of data to those entities, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstrationassessment shall be dulyreasonably 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, the chain of onward transmission of data that may reasonably be foreseen, and the uniqueness and novelty of the connected product. Data holders shall not be required to undertake a comprehensive assessment of foreign legal systems, enforcement practices, or international law in order to rely on this paragraph. In particular, small and medium-sized enterprises should be entitled to rely on publicly available information and generally recognised risks when assessing the likelihood of unlawful acquisition, use, or disclosure. It shall be provided in writing to the user 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.’;
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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 229 · Piotr Müller IMCO
8. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstratefinds that, despite the technicaldata andrequested organisationalmay measuresresult taken by the user pursuant to paragraph 6 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or that thein disclosure of trade secrets to the user 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 user without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competentparty authorityrequesting designatedthe pursuant to Article 37data.;
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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 230 · Arba Kokalari IMCO
8. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 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 user 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. ThatThe 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. Itrefusal shall be provided in writing to the user 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.;
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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 231 · Sophia Kircher IMCO
8. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstratefinds that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 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 user 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 user without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competentuser authorityrequesting the data designated pursuant; The Commission shall consult stakeholders and adopt guidelines on the application of paragraph 4(8). These shall identify specific third-country jurisdictions and types of data or practices that inherently pose a high risk to Articletrade 37secrets in particular where 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.; The Commission shall provide a simplified template based on the list of objective criteria to help data holders to substantiate 'serious economic damage,' and where access may be granted even if data is highly sensitive and under what conditions.
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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 232 · Morten Løkkegaard, Svenja Hahn, Jeannette Baljeu IMCO
8. 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 user pursuant to paragraph 6 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 user 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. When assessing such risk, due account shall be taken of the strategic value of the data, the possibility of reverse engineering, the protection of intellectual property rights and the potential impact on the competitiveness of Union undertakings. 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 user 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.;
Justification

A well-functioning Single Market depends on both the free flow of data and effective protection of trade secrets and intellectual property. This amendment provides greater legal certainty by clarifying how economic risks should be assessed, while ensuring that mandatory data-sharing obligations do not weaken the competitiveness of Union undertakings or reduce incentives to innovate and invest across the Single Market.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Additional proposed wording Amendment 233 · Piotr Müller IMCO
8a.

A data holder may use any readily available data that is non-personal data. A data holder shall not use such data to derive insights about the economic situation, assets and production methods of, or the use by, the user in any other manner that could undermine the commercial position of that user on the markets in which the user is active

Justification

Frees businesses to use non-personal product data without concluding a separate contract with every user, removing a paperwork obligation that serves no protective purpose

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8 a (new)

Alternative wording Amendment 234 · Sophia Kircher IMCO
13. A data holder shallis onlyentitled to use any readily available data that is non-personal data. Such use shall be without prejudice to Regulation (EU) 2016/679 and shall comply with Union and national law on the basisprotection of atrade contractsecrets withand theintellectual userproperty rights. A data holder shall not use such data to derive insights about the economic situation, assets and production methods of, or the use by, the user in any other manner that could undermine the commercial position of that user on the markets in which the user is active."
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Header printed in the source: Article 1 – paragraph 1 – point 3 a (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 13

Remove proposed wording Amendment 592 · Axel Voss ITRE · LIBE
8. 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 user pursuant to paragraph 6 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 user 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 user 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.;
Justification

The amendments ensure that Data Act access rights do not override trade secrets, IP or EU cybersecurity objectives. Industrial and IoT data can reveal know-how, algorithms, control logic, production methods or R&D results when combined, sequenced or analysed in bulk. Disclosure without the trade secret holder’s consent would weaken innovation, expose EU manufacturers to unfair competition and security risks, and reduce trust in data sharing, while preserving coherence with the Trade Secrets Directive, NIS2 and the Cyber Resilience Act.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

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Alternative wording Amendment 593 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
8. 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 user pursuant to paragraph 6 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 user 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 user 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.
Justification

The amendment ensures that the trade secret safeguard remains an exceptional mechanism and cannot be used to undermine the Data Act’s objective of effective data access. It clarifies that data holders must demonstrate that the data concerned qualify as trade secrets under Article 2(18) of the Data Act and Article 2(1) of the Trade Secrets Directive, and that related risks cannot be adequately mitigated through the design obligations under Article 3(1) of the Data Act. This preserves a balance between protecting legitimate trade secrets and ensuring access to and use of data.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8

Alternative wording Amendment 594 · Michael McNamara, Irena Joveva, Oihane Agirregoitia Martínez, Veronika Cifrová Ostrihoňová, Christophe Grudler ITRE · LIBE
8. The Commission, in consultation with the European Data Innovation Board (EDIB) and representatives of data holders, users, and thrid-parties shall publish a list of high-risk sectors with regards to the disclosure of trade secrets. 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 user pursuant to paragraph 6 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets or, in high-risk sectors, that the disclosure of trade secrets to the user 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 elementsevidence, such as the enforceability of trade secrets protection in third countries, the verifable insufficiency of specific technical and organisational measures taken by the user pursuant to paragraph 6 of this Article, the high likelihood of suffering serious economic damage, 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 user 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 no later than five working days after the refusal was communicated to the user.; The competent authority shall approve or reject the data holder’s refusal to share data pursuant to this paragraph based on a review of the evidence submitted by the data holder, and provide in writing an explanation for its decision to the data holder and user within 60 calander days. The user has the right to be heard before the competent authority decides to approve or reject the data holder’s refusal to share data pursuant to this paragraph. The Commission shall issue guidelines, in consultation with the European Data Innovation Board (EDIB) and representatives of data holders, users, and third parties on the application of this paragraph, such as the assessment of serious economic damage, third-country entity direct or indirect control, and the enforceability of trade secrets protection in third countries.
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Alternative wording Amendment 595 · Julie Rechagneux, Mélanie Disdier, Aleksandar Nikolic, Pierre-Romain Thionnet, Alexandre Varaut, Fabrice Leggeri, Marion Maréchal, Christophe Bay ITRE · LIBE
8. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstrateestablish, on the basis of reasonable grounds that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 of this Article, it is highly likely to suffer serious economic damage from the disclosure of trade secrets, or of industrial, strategic or sensitive data whose disclosure would be liable to harm economic security, privacy or public order, or create a serious risk to the cybersecurity of the connected product, related service or the data holder’s systems, or that the disclosure of tradesuch secrets to the userdata 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, including as a result of the foreseeable onward transmission of the data to such entities, that data holder may refuse on a case-by-case basis a request for access to the specific data in question. That demonstrationassessment shall be dulyreasonably 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, the nature and seriousness of the cybersecurity risk, the reasonably foreseeable chain of onward transmission of the data, and the uniqueness and novelty of the connected product. Data holders shall not be required to undertake a comprehensive assessment of foreign legal systems, enforcement practices, or international law in order to rely on this paragraph. In particular, small and medium-sized enterprises should be entitled to rely on publicly available information and generally recognised risks when assessing the likelihood of unlawful acquisition, use, or disclosure. It shall be provided in writing to the user 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.;
Justification

The right to refuse data sharing where disclosure would cause serious harm should not be confined to trade secrets in the strict sense. Industrial, strategic or sensitive data whose disclosure would be liable to harm the economic security of the Union, the privacy of natural persons or public order warrant equivalent protection. Furthermore, the evidentiary standard applicable to data holders should be calibrated so as to remain workable in practice: requiring a holder to demonstrate that serious damage is highly likely sets a threshold that is difficult to meet ex ante and risks depriving the safeguard of its effectiveness. The introduction of a reasonable grounds standard, together with a requirement that the assessment be reasonably substantiated on the basis of objective elements, preserves the case-by-case and duly reasoned nature of the refusal while ensuring that the safeguard is genuinely operable.

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Alternative wording Amendment 596 · Aura Salla, Niels Flemming Hansen, Ana Miguel Pedro, Adina Vălean, Andrea Wechsler, Christian Ehler ITRE · LIBE
8. In exceptional circumstances, where the data holder who is a trade secret holder is able to demonstratefinds that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 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 user 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, suchin asparticular 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 user without undue delay. Where the data holder refuses to share data pursuant to this paragraph, it shall notify the competentuser authorityrequesting designatedthe pursuantdata. The Commission shall consult stakeholders and adopt guidelines on the application of paragraph 4(8). These shall identify specific third-country jurisdictions and types of data or practices that inherently pose a high risk to Articletrade 37secrets in particular where 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.; The Commission shall provide a simplified template based on the list of objective criteria to help data holders to substantiate 'serious economic damage,' and where access may be granted even if data is highly sensitive and under what conditions.
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Alternative wording Amendment 597 · Dario Nardella ITRE · LIBE
8. 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 user pursuant to paragraph 6 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 user 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 user 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 request for access involves data reflecting the user’s economic activity, scale of operations and output, the data holder shall inform the user in advance of the request received, specifying the nature of the data requested, the identity of the applicant and the decisions taken regarding the activation of the refusal mechanism referred to in this paragraph. Upon a reasoned request from the user, the data holder shall activate the refusal mechanism for the part of the data which reflects the user’s economic activity, unless the data holder demonstrates in writing that the conditions set out in this paragraph are not met.
Justification

L'emendamento non altera l'impianto del meccanismo di rifiuto introdotto dalla proposta della Commissione, ma ne aggiunge due elementi complementari, che intervengono soltanto nel caso in cui la richiesta di accesso riguardi dati che riflettono l'attività e il dimensionamento economico dell'utente e delle sue produzioni. Il primo elemento è un obbligo informativo del detentore dei dati verso l'utente. Il secondo è il diritto dell'utente di richiedere l'attivazione del meccanismo di rifiuto per la parte dei dati che lo riguardano, con inversione dell'onere motivazionale a carico del detentore ove intenda non attivare il meccanismo. La distinzione tra dati riconducibili al funzionamento tecnico del prodotto e dati riconducibili all'attività economica dell'utente può essere oggetto degli orientamenti della Commissione, come previsto dal considerando 13 bis introdotto dall'Emendamento 5.

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Alternative wording Amendment 598 · Francesco Torselli, Paolo Inselvini ITRE · LIBE
8. 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 user pursuant to paragraph 6 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 user 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 user 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 request for access involves data reflecting the user’s economic activity, scale of operations and output, the data holder shall inform the user in advance of the request received, specifying the nature of the data requested, the identity of the applicant and the decisions taken regarding the activation of the refusal mechanism referred to in this paragraph. Upon a reasoned request from the user, the data holder shall activate the refusal mechanism for the part of the data which reflects the user’s economic activity, unless the data holder demonstrates in writing that the conditions set out in this paragraph are not met. (Our intention is to amend part of the text at the end of the article.)
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Alternative wording Amendment 599 · Diego Solier, Sebastian Tynkkynen, Elena Donazzan ITRE · LIBE
8. 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 user pursuant to paragraph 6 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 user 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 user 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 appropriate technical, organisational or contractual measures cannot reasonably ensure the effective protection of trade secrets or confidential commercial information, the data holder shall not be required to disclose the relevant data. This Regulation shall set measures to prevent the disclosure of trade secrets where equivalent technical or contractual safeguards cannot reasonably ensure the protection of confidential commercial information.
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Alternative wording Amendment 600 · Henrik Dahl ITRE · LIBE
8. In exceptionalany circumstancescircumstance, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 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 user posesassesses a high risk of unlawfuldisclosing acquisitiontrade secrets, 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. ThatThe demonstrationassessment shall be duly substantiatedbased on the basis of objective elements, such as the enforceabilitydefinition of trade secrets protectionstated in thirdArticle countries,2 the nature and level(1) of confidentialityDirective (EU) 2016/943 of the dataEuropean requested,Parliament and the uniqueness and novelty of the connected productCouncil. ItThe refusal shall be provided in writing to the user 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.;
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Alternative wording Amendment 601 · Alice Teodorescu Måwe, Henrik Dahl ITRE · LIBE
8. In exceptionalany circumstancescircumstance, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 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 user posesassesses a high risk of unlawfuldisclosing acquisitiontrade secrets, 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. ThatThe demonstrationassessment shall be duly substantiatedbased on the basis of objective elements, such as the enforceabilitydefinition of trade secrets protectionstated in thirdArticle countries,2 the nature and level(1) of confidentialityDirective (EU) 2016/943 of the dataEuropean requested,Parliament and the uniqueness and novelty of the connected productCouncil. ItThe refusal shall be provided in writing to the user 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.;
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Alternative wording Amendment 602 · Niels Flemming Hansen ITRE · LIBE
8. In exceptionalany circumstancescircumstance, where the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 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 user posesassesses a high risk of unlawfuldisclosing acquisitiontrade secrets, 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. ThatThe demonstrationassessment shall be duly substantiatedbased on the basis of objective elements, such as the enforceabilitydefinition of trade secrets protectionstated in thirdArticle countries,2 the nature and level(1) of confidentialityDirective (EU) 2016/943 of the dataEuropean requested,Parliament and the uniqueness and novelty of the connected productCouncil. ItThe refusal shall be provided in writing to the user 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.;
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Alternative wording Amendment 603 · Tomas Tobé, Arba Kokalari, Jörgen Warborn ITRE · LIBE
8. In exceptional circumstances, whereWhere the data holder who is a trade secret holder is able to demonstrate that, despite the technical and organisational measures taken by the user pursuant to paragraph 6 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 user 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. ThatThe 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. Itrefusal shall be provided in writing to the user 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.;
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Alternative wording Amendment 604 · João Oliveira ITRE · LIBE
8. 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 user pursuant to paragraph 6 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 user 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 user 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.
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Alternative wording Amendment 605 · Zala Černilec Tomašič, Jan Farský, Ondřej Krutílek, Tomáš Zdechovský, Henrik Dahl, Alexandr Vondra, Veronika Vrecionová, Lukas Mandl ITRE · LIBE
8. 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 user pursuant to paragraph 6 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 user 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 user 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.; Circumstances that invoke the right to refuse a request for access may also arise if the disclosure of such data would increase cybersecurity risks affecting the security or resilience of the shared data, or the data holder’s network and information systems, connected products, or related services.
Justification

This amendment improves legal certainty by recognising cybersecurity as a valid ground to refuse data access where disclosure would demonstrably increase cyber risks or compromise the security of data, systems, products or services. It closes a gap in the Data Act, aligns it with the NIS2 Directive and Cyber Resilience Act, and allows refusal only where objectively justified, preserving data sharing while preventing avoidable cybersecurity risks.

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Alternative wording Amendment 606 · Damian Boeselager on behalf of the Verts/ALE Group ITRE · LIBE
8. 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 user pursuant to paragraph 6 of this Article, it is highly likely to suffer serious and irreparable economic damage from the disclosure of trade secrets or that the disclosure of trade secrets to the user 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, suchin asparticular 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 user 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.; The data holder and the competent authority shall inform the user of their rights and the relevant procedure under paragraph 7.
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Alternative wording Amendment 607 · Pilar del Castillo Vera ITRE · LIBE
8. 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 user pursuant to paragraph 6 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 user 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, suchin asparticular 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 user 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.;
Justification

Article 4(8), as currently drafted in the Data Act, establishes an exhaustive framework for demonstrating, based on objective elements, the risk of serious economic damage resulting from the disclosure of trade secrets. Replacing “in particular” with “such as” would transform that framework into an open-ended list of criteria, allowing reliance on additional unspecified elements and broadening the grounds for refusal. To preserve legal certainty, the original wording should be retained.

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Additional proposed wording Amendment 609 · Aura Salla, Niels Flemming Hansen, Ana Miguel Pedro, Adina Vălean, Henrik Dahl, Andrea Wechsler, Pekka Toveri, Christian Ehler ITRE · LIBE

8a. Article 4, paragraph 13 is amended as follows

13.

A data holder is entitled to use any readily available data that is non-personal data. Such use shall be without prejudice to Regulation (EU) 2016/679 and shall comply with Union and national law on the protection of trade secrets and intellectual property rights. A data holder shall not use such data to derive insights about the economic situation, assets and production methods of, or the use by, the user in any other manner that could undermine the commercial position of that user on the markets in which the user is active.'

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 13

Additional proposed wording Amendment 610 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
8a.

The data holder shall not rely on this Article to refuse data access on the basis of generalised assumptions concerning a third country, ownership structure, technology provider, or category of recipient.

The data holder shall not engage in any behaviour that undermines effective compliance with the data access obligations under this Regulation regardless of whether that behaviour is of a contractual, commercial or technical nature, or of any other nature, or consists in the use of behavioural techniques or interface design.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8a (new)

Additional proposed wording Amendment 611 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
8b.

Before refusing access under paragraph 8, the data holder shall assess whether the identified risk can be effectively addressed through proportionate technical, organisational, contractual, or secure-access measures, including access in a secure processing environment, partial access, aggregation, confidentiality commitments, or other safeguards that enable the user to exercise the rights provided for in this Regulation. Refusal shall be used only where such measures would be insufficient to address a duly substantiated and specific risk.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8b (new)

Additional proposed wording Amendment 612 · Elena Sancho Murillo, Marina Kaljurand, Brando Benifei, José Cepeda, Lina Gálvez, Francisco Assis, Alex Agius Saliba ITRE · LIBE
8c.

The review of the data holder’s refusal to provide data access by the competent authority designated pursuant to Article 37 referred to in paragraph 8 shall be available through an expedited procedure which shall not be later than a month in complex cases. The competent authority shall assess the necessity, proportionality, evidence and non-discriminatory nature of the refusal.

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Header printed in the source: Article 1 – paragraph 1 – point 3 / Regulation (EU) 2023/2854 / Article 4 – paragraph 8c (new)

Alternative wording Amendment 613 · Bart Groothuis, Ivars Ijabs, Morten Løkkegaard, Svenja Hahn, Andreas Glück, João Cotrim De Figueiredo, Ana Vasconcelos ITRE · LIBE
93a. Without prejudice to a user’s right to seek redress at any stage before a court or tribunal of a Member State, a user wishing to challenge a data holder’s decision to refuse or to withhold or suspend data sharing pursuant to paragraphs 7 and 8 may: (a)lodge, in accordance with Article 37(5),4 pointparagraph (b), a complaint with the competent authority, which shall, without undue delay, decide whether and under which conditions data sharing9 is todeleted start or resume; or""
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Header printed in the source: Article 1 – paragraph 1 – point 3 a (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 9

Alternative wording Amendment 614 · Axel Voss ITRE · LIBE
3 a. Article 4 - paragraph 6 is replaced by the following:
6. Trade secrets shall be preserved and shall not be disclosed only wherewithout the dataconsent holder and the user take all necessary measures prior to the disclosure to preserveof their confidentiality in particular regarding third parties. The data holder or, where they are not the same person, therespective trade secret holder shall identify the data which are protected as trade secrets, including in the relevant metadata, and shall agree with the user proportionate technical and organisational measures necessary to preserve the confidentiality of the shared data, in particular in relation to third parties, such as model contractual terms, confidentiality agreements, strict access protocols, technical standards and the application of codes of conduct."
Justification

The amendments ensure that Data Act access rights do not override trade secrets, IP or EU cybersecurity objectives. Industrial and IoT data can reveal know-how, algorithms, control logic, production methods or R&D results when combined, sequenced or analysed in bulk. Disclosure without the trade secret holder’s consent would weaken innovation, expose EU manufacturers to unfair competition and security risks, and reduce trust in data sharing, while preserving coherence with the Trade Secrets Directive, NIS2 and the Cyber Resilience Act.

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Header printed in the source: Article 1 – paragraph 1 – point 3 a (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 6

Additional proposed wording Amendment 615 · Aura Salla, Niels Flemming Hansen, Ana Miguel Pedro, Adina Vălean, Christian Ehler ITRE · LIBE

3a. In Article 4, paragraph 14 is replaced by the following;

“Data holders may make available non-personal product data to third parties for legitimate commercial or non-commercial purposes;”

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Header printed in the source: Article 1 – paragraph 1 – point 3 a (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 14

New operation deleting existing wording Amendment 617 · Damian Boeselager on behalf of the Verts/ALE Group ITRE · LIBE

new Parliament proposal instruction expressly deletes existing law

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Header printed in the source: Article 1 – paragraph 1 – point 3 a (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 10

Alternative wording Amendment 618 · Axel Voss ITRE · LIBE
73 b. WhereArticle there4 - paragraph 7 is no agreement on the necessary measures referred to in paragraph 6, or if the user fails to implement the measures agreed pursuant to paragraph 6 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 secretsdeleted. The decision of the data holder shall be duly substantiated and provided in writing to the user 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.""
Justification

The amendments ensure that Data Act access rights do not override trade secrets, IP or EU cybersecurity objectives. Industrial and IoT data can reveal know-how, algorithms, control logic, production methods or R&D results when combined, sequenced or analysed in bulk. Disclosure without the trade secret holder’s consent would weaken innovation, expose EU manufacturers to unfair competition and security risks, and reduce trust in data sharing, while preserving coherence with the Trade Secrets Directive, NIS2 and the Cyber Resilience Act.

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Header printed in the source: Article 1 – paragraph 1 – point 3 b (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 7

Alternative wording Amendment 619 · Axel Voss ITRE · LIBE
133c. AIn dataArticle holder4, shallparagraph only use any readily available data that13 is non-personal data on the basis of a contract with the userdeleted. A data holder shall not use such data to derive insights about the economic situation, assets and production methods of, or the use by, the user in any other manner that could undermine the commercial position of that user on the markets in which the user is active.""
Justification

Deleting Article 4(13) and (14) restores data holders’ ability to use non-personal data generated by connected products for diagnostics, maintenance, safety, cybersecurity, quality assurance, R&D, AI development and product improvement. The current rules create legal uncertainty, contractual friction and barriers for upstream operators and OEM-component partnerships. Deletion simplifies the Data Act, supports industrial competitiveness and leaves safeguards for data protection, trade secrets and IP intact.

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Header printed in the source: Article 1 – paragraph 1 – point 3 c (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 13

Alternative wording Amendment 620 · Axel Voss ITRE · LIBE
143d. DataArticle holders4 shall- notparagraph make14 availableis non-personal product data to third parties for commercial or non-commercial purposes other than the fulfilment of their contract with the userdeleted. Where relevant, data holders shall contractually bind third parties not to further share data received from them.""
Justification

Deleting Article 4(13) and (14) restores data holders’ ability to use non-personal data generated by connected products for diagnostics, maintenance, safety, cybersecurity, quality assurance, R&D, AI development and product improvement. The current rules create legal uncertainty, contractual friction and barriers for upstream operators and OEM-component partnerships. Deletion simplifies the Data Act, supports industrial competitiveness and leaves safeguards for data protection, trade secrets and IP intact.

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Header printed in the source: Article 1 – paragraph 1 – point 3 d (new) / Regulation (EU) 2023/2854 / Article 4 – paragraph 14